Tender irregularities have for the longest time become a norm in Botswana’s economic development. The end result is that intended consumers of such tenders become the perennial victims. Most if not all tender irregularities are avoidable but permitted because the due diligence process to do so in most if not all cases, wilfully ignored. I am saying wilfully because the processes and procedures to award a tender are, to a large measure I want to believe, matters of mandatory duty as opposed to discretionary duty in terms of the requisite legislation, rules and regulations. This notwithstanding, court rooms are full of perennial tender disputes. The Gambling Authority of Botswana finds itself mired in a lottery tender dispute between the preferred bidder Grow Mine Africa (Propriety) Limited and Ithuba Solutions (Pty) Ltd.
The Gambling Authority ‘is a body corporate that has been established in terms of the Gambling Act No 7 of 2012. The Authority is charged with regulating the gambling industry in Botswana. Its core values are to ‘uphold the following values: Transparency, Reliability, Integrity and Professionalism.’ Given these compelling values and the high value gambling industry, one would have expected the highest degree of attention to detail as a buffer to avoid possible and costly litigation. From what is in the public domain at this stage, it appears to me that these values are more of a smokescreen than anything else. Following the award to Grow Mine as the preferred bidder, Ithuba Solutions was quick off the blocks to declare and launch a legal dispute at the High Court. The media is awash with Ithuba’s grounds of complaint while those of the Gambling Authority are not readily available. It would have been interesting to critique the two parties’ grounds in order to proffer a balanced opinion. Nevertheless, I will have to do with the little at my disposal. The possible argument to be made in defence by the Gambling Authority is that it has complied with the Act and other related instruments.
A closer look at the directors of the two companies shows that Grow Mine is made up of largely local individuals while Ithuba is a mixed bag of local and foreign investors. While it is fair to say that the local company on face value has no one with little to extensive lottery industry experience, it is said that Ithuba has some footprints in that regard from South Africa. Expectedly, it should not be far-fetched to suggest that the lottery tender would be biased towards the local company for obvious reasons. It would be in the context of, in the main, citizen empowerment and all that accrues to it. As a Motswana, I would be pleased if the lottery tender was won by a local company.
But such consideration would be fatal if it were made on sentiment as opposed to merit particularly that this is a new industry in Botswana which requires capacity in whatever respect and strong financial muscle. It is emerging from media reports that the local company appears to be seriously challenged with regards to the financial muscle. These reports also suggest that some three or so directors have since resigned from Grow Mine. This tells a sad story that the company may have not, after all, been fully organised to meet all the obligations of the tender lottery. How could a company that has just won a multi-billion lottery tender collapse even before a trading licence is issued? Did the Gambling Authority undertake serious due diligence to ensure that the company is well grounded corporate-wise amongst others? If it did, did it fail to notice or unearth the possible frailties of the company whatever those could be? These are pertinent questions to be asked whose answers can only be provided by the Gambling Authority.
Ithuba is questioning whether the Public Procurement & Asset Disposal Board (PPADB) Act was complied with since the Gambling Authority is a corporate entity bound by the provisions of this Act. A ministerial waiver published in the Government Gazette is the only route the Gambling Authority could be exempted from complying with the said provisions in this tender. Reports suggest PPADB has confirmed that the Gambling Authority has neither sought its input in the lottery tender nor the ministerial waiver. Therefore, if the PPADB Act has been violated with impunity as it appears to be the case, the lottery tender should stand invalid and set aside. One would expect Grow Mine to have lawyers to advise it on matters of complying with legislation governing this tender. It is reported that the Gambling Authority is in the process of parting ways with its initial law firm and enlisting the services of the other. It appears there are boardroom fissures on the part of the Grow Mine on this matter and others.
The other Ithuba ground of discomfort is the seemingly unprotected nature of its tender bids information whereupon this information was reportedly, susceptible to be available other competing bidders or the general public. This undoubtedly brings into question the safety and protection of bidders’ information from being compromised in whatever respect be it by the employees of the Gambling Authority or the internal administrative systems set up to protect such bidders’ information. It goes without saying that in any tender process where documents and information of bidders are not adequately protected, it doesn’t only compromise the credibility of the process but to lay bare the lack of good corporate governance. Consequently, the legitimacy of tenders as it appears to be the case in this instance, is more likely to attract litigation.
One curious absentee in the lottery tender conundrum is the Directorate of Intelligence and Security Services (DISS) whose footprints are all over high value tenders. We have seen such footprints in the multi-billion water tenders where winning companies were disqualified by it. Amongst others, issues of national security which have not been validated for their authenticity and the vetting of companies have been its main preoccupation in the tendering sphere. It will be fair to suggest that in the tender in question and owing to other past tenders of similar value, wouldn’t it be expected that the DIIS got involved. I am not suggesting for a minute that I support its involvement in tender processes but that because it has become a norm somewhat, its absence is curious as I have said. Was it in a privileged position to know who the preferred bidder would be? Your guess is as good as mine.
From what has so far come out in the media and assuming it is the true picture of the chronology of events, the Gambling Authority appears to have committed a series of procedural and substantive good governance missteps which on face value, could bring its credibility into sharp focus coupled with dire consequences. It may very well be that a local company was a preferred bidder as it has since emerged. But with serious questions on the local company abound as per Ithuba Solutions grounds of its legal complaint, it creates a serious doubt whether Grow More was selected on a ‘home boy basis’ or on whether the adjudication bid was transparent, reliable and professional as per the core values of the Gambling Authority, to arrive at such preferred bidder selection.
I am incompetent to pass judgement on the validity or otherwise of the Ithuba Solutions grounds except to echo the well-known saying that there is no smoke without fire. To be fair to the Gambling Authority, it may very well have processed the lottery tender as per the rule book. Whatever the case, the lottery tender appears to have all the hallmarks of similar high value past tenders where mandatory legal requirements were ignored. I have seen this movie before and I am not surprised that it is repeating itself if that is the case. I am prepared to be persuaded otherwise as always. Judge for Yourself!
Covid-19 pandemic is still our immediate threat. Let us religiously follow the health protocols of washing our hands with clean water and soap or sanitise where possible, wear our masks and social distance. It our civic duty to do so.
