Friday, September 25, 2020

DIS declares Chinese company a security threat

The Directorate on Intelligence and Security (DIS) has declared China Jiangsu International a security threat and ordered sanctions against the Chinese Government owned entity, court records seen by the Sunday Standard show. 

This emerged in a case in which China Jiangsu Botswana has taken the Botswana Government to court after the DIS prevailed over Public Procurement Assets and Disposal Board (PPADB)’s decision not to withdraw a tender worth more than P1 billion.

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

According to minutes of the Board of PPADB which form part of the papers before court, the Board had clashed with the procuring entity, the Ministry of Lands Water and Sanitation over whether to terminate the tender or not and award it to the next compliant bidder.

The tender is for the design, supply and build of water distribution network, sanitation.

The Board informed the Ministry that every submission or request placed before it ought to be supported or motivated by the entity that has placed such and relevant documents submitted in support thereof.

“It is not for the Board to deal directly with the DIS to solicit information to support the Ministry’s request,” the minutes read in part.  The Board also requested the Ministry to submit communication/certification or any other equivalent document from DIS referred to in the Ministry’s letter requesting for withdrawal of award of the tender confirming that the information cannot be disclosed in line with Section 20 (2) of the Intelligence and Security Services (ISS) Act.

The Board indicated that it was cognizant of the sensitive nature of matters of national security and that the full details of such may not be divulged to it. However, the Board cannot rely on hearsay to make its decision.

“Therefore, any party that makes an allegation that a third party has made any calling in respect to any procurement ought to submit communication to the Board to note,” the minutes show. The Ministry’s response was that Board should directly liase with DIS for provision of support documents sort by the Board.

The Ministry indicated that they have consulted DIS and are glad that DIS furnished them with a copy of a letter to support their request for withdrawal of award. The Board needed a document in the form of certificate from DIS certifying that China Jiangsu International is a threat to national security.

The second paragraph of the copy of the letter from DIS indicates that “Pursuant to the intelligence and Security Services Act, the Directorate has been following has been following the activities of China Jiangsu International, a company incorporated in Botswana.”

The letter also states that “the intelligence gathered thus far suggest that the company has been involved the activities that border on the threat of national security.”

The minutes further state that: “the DIS letter concludes by advising the Ministry to terminate all dealings they have with China Jiangsu International reasons.”

“The letter does not provide enough information for the Board. It would have been better if the DIS could provide a certificate as stated in ISS Act for entities that are regarded as threat to national security,” the minutes state further.

The minutes also note that there will be a need for bidders to validate their bids in order to progress the tender further noting that its validity expired in December 2018.

The Board also noted that China Jiangsu Botswana has been given projects by other ministries therefore the “DIS will be requested to clarify if the threat to national security by China Jiangsu only affected project at the Ministry of Land Management Water and Sanitation Services.”

In a letter dated 16 January 2019, the Ministry informed the PPADB that “our understanding is that in matters of national security the State retains all authority and in Botswana DIS exercises such authority on behalf of the State.” It added that “in the present circumstances the State through DIS has determined that China Jiangsu International Botswana is a potentially threat to Botswana’s national security and has instructed Ministry of Land Management Water and Sanitation Services and its departments not to contract with it in order to safeguard national security.”

The letter further states that “once the State has made a decision on a national security it cannot be challenged not even by the courts. There is a plethora of case law illustrating this point.”

It concluded: “We therefore do not see the utility of consulting with, and obtaining the views of, Jiangsu on this matter. It is highly unlikely that anything meaningful will come of it as we cannot see such consultations changing the State’s position with regards Jiangsu. In fact consulting Jiangsu may actual usually prejudice Botswana’s national security.”

Subsequently, at its meeting of 7th of February withdrew the award of the tender to China Jiangsu International Botswana.  The Board request the Ministry confirm availability of the funds and request bidders to revalidate their bids.

The Managing Director at China Jiangsu Botswana Cui Wanglin, through his lawyers, Monthe and Marumo Attorneys wants the decision of the PPADB to set aside the tender to be reviewed as it is contrary to the provision of the Act. The PPADB has since, through its lawyers, Rantao and Kewagamanang Attorneys defended the suit.

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