A toxic brew of politics and “tenderpreneurship” is playing itself out relating to the provision of piped water to Gaborone and its environs.
Tenders for the largest engineering project ever in the Botswana-North-South Carrier (NSC)-have been terminated.
The result is that an NSC pipeline in Botswana that carries raw water from the north to the south for a distance of 360 kilometres to the capital city of Gaborone could be compromised.
Details of what may have triggered the decision by the Botswana Government to terminate its contract with Chinese entities have not been made public nor made clear to the departments that had awarded the contracts themselves save to say the reasons border on national security.
Unconfirmed reports had earlier on indicated that some Chinese companies were involved in the country’s political affairs.
Now, Lobatse High Court Judge Justice Tebogo Tau has 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.
This follows a decision by the Directorate of Intelligence and Security (DIS) to play a major behind the scenes-role in the controversial termination of mega tender to Chinese companies, Unik Construction Engineering and China Jiangsu International Botswana.
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 instructed Water Utilities Corporation (WUC) to cancel the contract.
Insiders have warned tensions could rise before the international arbitrator calm tensions between Botswana and Chinese contractors as the DIS keeps on terminating tenders that were awarded to contractors in the past few years.
A diplomat who asked to remain anonymous said China was monitoring the latest development closely and it just a matter of time before they engage the Government of Botswana on the matter.
This week, Justice Tau handed down a judgement in which she ordered that the dispute between Unik Construction, China Jiangsu Botswana and the WUC be resolved by an international arbitrator.
The order states: “The running of the period of notice that arose from the 1st Respondent’s (WUC) letters dated the 14th January 2019 purporting to terminate the contract referenced Design, Supply, Installation and Commissioning of Mmamashia Water Treatment Plant-Tender No WU 015(2018) is hereby suspended pending a final resolution of the parties dispute by a Dispute Adjudication Board and/or Arbitral Proceedings that may result there from.”
The parties were ordered to constitute such Dispute Adjudication Board (DAB) in terms of their contract referenced; Design, Supply, Installation and Commissioning of Mmamashia Waste Treatment Plant-Tender No.WUC 015 (2018) within 14 days of this order.
The said DAB, the Order states, shall comprise a single member nominated by the parties to preside who shall be an appropriately qualified and experienced person carrying on practice in and any field that they deem relevant, outside Botswana.
“In the event that the parties cannot agree on a suitable person to appoint as the DAB within the time stated in paragraph 2 of the parameters stated in paragraph tree of this Order, pursuant to an Application for Directions, duly supported by an appropriate founding affidavit, that maybe filed either partly within seven court days of their failure to agree,” states the Order.
It further states: “The said DAB shall determine, inter alia, the following issues within 60 days, or such other period as may be agreed as the appropriate time of assuming mandate; Whether the Respondent’s purported termination of the contract between the parties is wrongful.”
The DAB shall also determine any other issues raised by the parties in terms of their contract
“The final resolution of the dispute between the parties shall, once the DAB has handed down its decision, proceed in accordance with the provisions of the contract between the parties,” reads the Order in part.
Unik Construction Engineering and China Jiangsu had approached the High Court asking the court to compel the WUC to review its decision to cancel the tender awarded to them.
The utility had written to the managing directors of the two Chinese companies involved to withdraw award of the tender from Unik Construction Engineering and China Jiangsu International Botswana which was awarded late last year.
The letter stated that the reasons for withdrawal of award cannot be disclosed as they are classified. WUC said it was invoking sub- clause 15.5 of the contract which empowers the corporation to terminate the contract it has with the two Chinese entities.
Unik Construction Engineering was represented by Tengo Rubadiri, while China Jiangsu Botswana was represented by Munyaka Makuyana and WUC was represented by Tshiamo Motsumi.