Sunday, July 3, 2022

Court halts P300 million project following BDC shady dealings

Botswana’s ambitious P300 million (US$ 50 million) innovation hub project suffered a setback this week when the High Court in Lobatse halted its quantity surveying tender following complaints of irregularities in the award. The project’s civil engineering tender has also been frozen following complaints of shady dealings.

The project, which is Botswana’s attempt to launch itself into the high technology industry, spearheaded by the Government’s property developer, the Botswana Development Corporation (BDC), is caught up in a controversy over shady dealings in the award of tenders.

Mmile Mhutsiwa & Associates (PTY) Ltd together with Davis Langdon (CCMI) Botswana (PTY) Ltd jointly dragged the BDC to court, through an urgent interlocutory application, seeking an order restraining the corporation and Fitzwilliam Partnership (the company awarded the tender) from implementing the quantity surveying award pending the outcome of the review proceedings ÔÇô an order that was granted by Judge Isaac Lesetedi.

This came after the Minister of Finance and Development Planning, Kenneth Matambo, together with the BDC chairman, Serwalo Tumelo, failed to act on an appeal lodged by the complainants.

The court heard that on January 10 this year, BDC wrote a short letter to the two companies informing them that they had lost the tender bid for Quantity Surveying Service for the Botswana Innovation Hub Development Project.

At the aggrieved companies’ request, a debriefing meeting took place on 23 January whereat the BDC was not forthcoming with information regarding certain aspects of the tender evaluation process and the joint venture’s performance in the tender evaluation.

“This reticence created suspicion in the Applicants’ mind that something was amiss in the tender evaluation,” Lesetedi said in his ruling in favour of the two companies. The judge said the companies were more particularly aggrieved because the BDC officers, while advising them to appeal to the same body which had determined the award, “were not forthcoming even in releasing information on the tender procedures which were followed in the evaluation”.

BDC, the court heard, refused to disclose anything contending that such information was confidential.

“The Applicants even appealed to the Honourable Minister and to the Chairman of the 1st Respondent’s [BDC] board against lack of transparency with no success. A notice to institute legal proceedings (was) served on the 1st Respondent and, inter alia, Attorney General, (but) did not yield any constructive results. It was ignored,” said Lesetedi.

The court heard that it was only in early June this year that a bundle of documents were received by the two companies which shed light on the BDC tender rules, the minutes of meetings relating to the evaluation of the tender and how the companies’ joint venture came to lose the tender. It was also brought to light who the winner of the tender was and the basis upon which it won the tender.
“The Applicants’ concern that they had not been treated fairly in the evaluation of the tender bids was given substance,” the judge said.

Lesetedi said it cannot be a dispute that if the Government had intended to procure the services required for the implementation of the project, the provisions of the Public Procurement and Asset Disposal Act (Cap: 42:08) of the Laws of Botswana would have been applicable. The Act requires that in any award of a tender regarding a Government project there must be transparency, fairness accountability. A failure to meet these would have been susceptible to judicial review at the instance of the aggrieved.

The BDC conceded when another complaint relating to the same project’s civil engineering tender award was brought before the High Court by Bergstan (PTY) Ltd same day. It also emerged that the BDC did not comply with the Public Procurement and Asset Disposal Board.

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