Monday, November 29, 2021

“For the President’s eyes only” tender to be decided by Court

Construction industry insiders are bracing for a peep show into the questionable goings on at the Roads Department as the controversial P500 million Charles Hill/Ncojane road project, which was the subject of a letter to the Office of the President by a whistle-blower who claimed that corruption cartels were running the Department of Roads, is decided by the High Court.

Details of the tendering process at the Roads Department ÔÇô which bidders claimed had been rigged ÔÇô have not been placed before the court, but Roads Department watchers are crossing their fingers that the case should escalate to that point.

For now, Gaborone High Court judge, Justice Michael Mothobi, has ordered that the adjudication process in the P500 million tender be suspended until Thursday next week when the court is expected to make a ruling in the case in which Tau Grading Construction has taken the Public Procurement and Assert Disposal Board (PPADB) to court over an impending Charles Hill-Ncojane road project.

The urgent application arises from the revoked P500 million tender by the PPADB following a letter to the bidders, among them Tau Grading Construction, that they had failed to comply with the tender requirements. PPADB had cancelled the tender in question, saying that all bidders had failed to comply with the tender specifics. PPADB later retendered for the same road project.

Tau Grading Construction then approached the High Court to revoke the re-tendering process.

PPADB lawyer, Kgalalelo Monthe of MONTHE MARUMO & CO. (Incorporating Molatlhegi & Associates), however, argues that the constructor had failed to exhaust provisions of Section 104 of the PPADB Act, which states that a party to a dispute who does not obtain response to his grievances may refer his complaints to the Independent Review Committee.

“You can only approach the High Court after following the applicable review procedure of the Independent Review Committee; the applicant has not done so and he has not exhausted remedies as provided for under the Act,” he said.

“The applicant has failed to demonstrate urgency; it is self created. Unless the applicant can demonstrate that he has exhausted the entire domestic remedies he is not suited to come before this court,” said Monthe.

Monthe argued that it is only the Independent Committee Review of the Board, which is empowered to suspend the procurement process.

“What the court should do is to say that you have skipped a step and shut the door,” he said.
Monthe on March 8th, PPADB published in the Government Gazette indicating that there will be retendering of the same tender and closing date was May 08th.

“By 08th March, they knew there was a tender that closes on May 8th. As of 14th February, the applicant also knew that the tender they were complaining about has been cancelled,” said Monthe.
He reiterated that as of 8th March, Tau Grading Construction was aware that a new tender was floated and was to be closed on 8th May.

“The applicant has known for a long time that tender has been cancelled. There were no pending reviews; they want this court to stop a tender that closes today (8th May,” said Monthe.
Replying, Munyaka Makuyana of Makuyana Legal Practice, told the Court that Monthe misread the regulations of the Independent Reviews Committee.

“You can only do so if the First Respondent (PPADB) has issued a letter for the commencement of the tender; the tender is still alive, no letter has been issued,” said Makuyana.

He said the High Court has the jurisdiction to hear the matter. “The argument that we are not properly before court falls away. What we seek is stay of the execution regarding the new tender, not review the decision to disqualify,” he said.

According to Makuyana, the Independent Committee does not have the power to stay execution.
“The Respondent cannot come here and attack us on the basis of misreading the regulation and say we came before the wrong forum. The applicant did not sit back, it reacted by way of an application to stop re-tendering,” said Makuyana.

He denied as untrue reports that his client wanted to mislead PPADB because they had attached the Safety Environmental Officer (SHE) under a wrong section.

On why his client did not take part in the retendering, Makuyana said it would have been absurd that his clients could petition the High Court and at the same time participate in a matter that they believed was flawed. Mothobi postponed the case to next week Thursday and ruled that no adjudication should take place until the ruling on the current application before court.

The Charles Hill-Ngcojane project has been the subject of corruption whispers in the construction industry amid claims that it was awarded to one contractor ( known to this paper) even before it went for tender.

The project, which should have been awarded, is expected to suffer huge cost overruns.

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