Saturday, October 24, 2020

Did DIS behave like a bull in a china shop blacklisting Chinese company?

The decision by the Directorate of Intelligence and Security (DIS) to blacklist China Jiangsu Botswana International may cost government unspecified  millions of Pula in compensation with no benefit to taxpayers, court records show. 

The Acting Executive Chairperson of Public Procurement and Asset Disposal Board (PPADB) Elijah Talampe Motshedi set the tone for the possible massive payout when he informed the Chinese company that “…the Applicant submitted a BOQ where it would no doubt make its own provision for its profit on mark-up in order to cater for its own operational expenses, amongst others, including salaries and the like.”

Through its lawyers, Monthe and Marumo Attorneys, China Jiangsu International Botswana has approached the court to interdict PPADB from re-awarding the tender to another Chinese company, Zhengtai. The tender is for the design, supply and build of water distribution network, sanitation, reticulation, telemetry and scada and other associated work in Maun.

But Motshedi says, China Jiangsu “can always institute action for this amount and it has not suggested in its founding affidavit that the Respondents, which include the Government of Botswana, is bankrupt and, so, it would not be able to honour any successful claim therefore.”

Through PPADB lawyers, Rantao and Kewagamang Attorneys, Motshedi said, the alleged apprehension of irreparable harm lacks any factual foundation and is therefore unreasonable adding that it is not true that China Jiangsu Botswana would not be able to compute its damages.

“It was awarded a tender in the sum of P1, 568,164.38. Although financial proposals do not contain how much profit the bidder stands to make at the end of the project, the said profit can be determined by the bidder because individual bidders would make provision thereof in their bills of quantities (BOQ),” he said.  

Motshedi further states that “It is inconceivable that any bidder would make a tender submission without making its own provision for profit. The applicant cannot suffer irreparable harm because it can always sue for damages.”

 Should China Jiangsu heed the advice by the PPADB acting chief executive officer, the government may have to contend with the fact that it has to pay more money to the company.  The Government through the Water utilities Corporation (WUC) has cancelled another tender involving the same company.

Unik Construction and China Jiangsu International Botswana (a joint venture) won the contract worth more than P800 million for the design supply, installation and commissioning of the Mmamashia Water Treatment Plant-Tender No. WUC 015(2018).

The tender is the subject of court action by the two contractors after the DIS again instructed Water Utilities Corporation (WUC) to cancel the contract.

Lobatse High Court Judge Justice Tebogo Tau has since ordered that an international arbitrator should mediate between the Botswana Government and Chinese contractors as tensions boil over into a possible diplomatic row over termination of the mega contracts worth millions of Pula.

 PPADB withdrew the tender worth more than P1 billion at the request of the Ministry of Lands Water and Sanitation. This was after DIS declared China Jiangsu International a security threat and ordered sanctions against the Chinese Government owned entity and ordered the ministry and other government departments not to deal the company.

China Jiangsu International had won the tender for the Maun Water reticulation project to the value of P1.5 billion.

In his founding affidavit, Managing Director of China Jiangsu International Botswana Cui Wanglin says should the tender be re-awarded his company would suffer irreparable harm.

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