Sunday, September 27, 2020

Multi- million tender lawsuit to be heard by Court of Appeal

The Court of Appeal┬áis expected to hear an appeal on Monday in which Eye D System is challenging Lobatse High Court judge, Lakhginder┬áWalia’s decision over the awarding of┬áa multi-million Pula tender to Systems Consultancy & Services by PPADB for the production of┬ádriver’s licences.

According to court papers, Eye D System contends that the awarding of the tender to System Consultancy & Services, which is trading as Unisystems, was based on unfair┬áground┬áand “did not comply with the┬áterms of the Information To Tender (ITT)”, adding┬áthat┬áthe evaluation of the tender was not done fairly on a level playing field as the┬áwinner was given “preferential treatment”.

The Eye D System’s lawyer are expected to argue that ITT┬á provided at Part C product demonstration that┬áthe proposed equipment┬ámust be operated┬áusing “card five card production systems” integrated┬á with the “drivers’ licensing systems”.

They pointed out that, at the┬á demonstration stage, their client, ┬áin compliance┬á with ITT, printed on the integrated┬á card five card production┬á software┬á with “driver licensing system” whilst Systems Consultancy & Services printed on card five┬á software, which was not┬á integrated┬á as their laptop was not working.

Busang Sebonego Attorneys, who are representing Eye D System, said in their court papers that the demonstration System Consultancy & Services did not comply with what was stipulated in the ITT.

Further, they are expected to argue that before the first demonstration,┬áthe Attorney General had requested┬áPPADP to renegotiate the┬áSystem Consultancy & ServicesÔÇöa move that was granted.

“During the second demonstration, the appellant (Eye D System) printed on the integrated card five card production software with Driver Licensing System. This is in specific compliance with ITT. Applicant further used the main computer, provided by the procuring entity for the use demonstration,” the papers filled by Eye D Systems lawyers indicated.

“The third respondent (Systems Consultancy & Services)┬áprinted on the card five software, which is not integrated as their laptop was not working. It is very apparent that System┬áConsultancy and Services was allowed to use their laptop when the┬áAttorney General provided a computer which┬áSystem Consultancy and Services called the “main computer”.

“This main computer is the one that was used to conduct demonstrations. It is also to be placed on record that the hardware that the bidder was to bring along the testing were printer, signature pad and camera. System Consultancy & Services was nonetheless allowed to bring hardware in the form of a laptop,” the┬ácourt paper said.
The papers said that System Consultancy & Services was awarded  the multi-million  tender despite the fact that  they failed to adhere to the ITT stipulated requirement.

“The PPADB’s conduct of allowing Systems Consultancy & Services to bring along hardware component┬á that was not required┬á and further┬á used it┬á was not only unfair, biased┬á and a complete disregard┬á for the requirements┬á of ITT, but that it further extended┬á an unfair advantage on Systems Consultancy &┬áServices at our ┬áclient’s detriment.

“That also contravenes PPADB Act┬á and that one should not lose sight┬á of the fact┬á that prior to the demonstration Systems Consultancy Services was borrowed, “card five card professional” by the Attorney General┬á and that AG does not deny this fact,” the lawyers representing Eye D System said.

They contend that the conduct has  stifled competition between their client and Systems Consultancy & Services and that there was no competition between the bidders because Systems Consultancy & Services was allowed to disregard  the laid down  principles  and procedures for demonstration.

They further pointed out that since the playing ground was not level there could not have been proper competition between the two parties.

They will further submit that the marks that were allocated the parties cannot  be premised to have been fair  given that the parties did two different tests and that there was no competition at all. They will also submit that the treatment of contractors was not fair and equitable, thus rendering the playing field unequal.

They will further┬ásubmit that this was ”a clear cut case┬á of favouritism┬á to Systems Consultancy ┬á& Services and mala fides against┬á their client. That the whole process was not transparent┬á because other bidders were allowed to bring in equipment that others were not allowed to bring and further to demonstrate on systems┬á that┬á were not authorised.

Further that had this been disclosed, their client would have come up with its own equipment.

They will say there was no integrity and fairness in the manner in which the tender was handled and double standards that favoured Systems Consultancy & Services were allowed.

For their part, the Attorney General and PPADB lawyers will submit that┬áthe lower Court had┬áreached a correct finding in dismissing Eye D Systems’ case with costs.

That there was no requirement that the bidders use the computer provided by the AG as ITT did not state that a computer would be provided or prohibited.

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Sunday Standard September 27 – 3 October

Digital copy of Sunday Standard issue of September 27 - 3 October, 2020.