The Botswana Development Corporation conceded at the eleventh hour to stop the civil and structural engineering contract in a bid to ward off an application for a court interdict filed by Bergstan (Pty) Ltd.
The company had arraigned the corporation before the High Court, asking the court to review or set aside a contract for Civil and Structural Engineering Services for the Botswana Innovation Hub Development Project.
The Bergstan argued that it was the successful bidder, but that the tender was unlawfully and wrongfully awarded to Pula Consultants (Pty) Ltd. The company had wanted the court to order BDC to pay compensation as determined by the court.
According to court papers, Bergstan were shortlisted in the category of Civil & Structural Engineers and despite having attained the highest overall mark and having met all the other necessary stipulated criteria, the tender was awarded to Pula Consultants.
The decision to reject Bergstan as the successful bidder was made on 24 November 2010 but was communicated to the company on 19 January 2011. BDC did not state when the tender had been awarded, who the successful tenderer was or give any indication of the tenderers respective scores.
“The notification was in breach of the Tender Rules and Regulations, which provide that unsuccessful tenderers must be informed within 5 working days of the outcome of the tender,” Bergstan argued.
The company requested a debriefing on 23 February 2011 but the BDC said its tender process did not provide for debriefing meetings as requested by the Bergstan and that the Public Procurement and Asset Disposal Board guidelines were not binding on the BDC.
According to the court papers, in June this year, an envelope of documents was anonymously delivered to the reception at Bergstan offices.
The dossier of documents according to the company appeared to reveal manipulation of the tender procedure and its outcome by persons in the BDC.
BDC refused to grant Bergstan a debriefing session until after six months on 6 September 2011.
During the debriefing session, the company says it received conflicting reports and evasive answers from BDC officials which confirmed its belief that the tender process was irregular and should be reviewed. The company argued that whilst the BDC and its officials are bound by the Tender Rules and Regulations, they are also bound by principles of administrative justice, which regulate the manner with which officials exercising administrative functions may make decisions and exercise discretion.
Bergstan said efforts to bring the irregularities to the attention of the BDC and the authorities were not heeded. The corporation proceeded with implementation of the tender award.
