In a twist of events around a multi-million pula tender at the Gaborone High Court, the Ministry of Basic Education has carried out an assignment that was explicitly assigned to the Public Procurement and Asset Disposal Board (PPADB).
“On an objective assessment of the evidence before me,” said Justice Dr. Zein Kebonang in his ruling last November, “I am satisfied that the documents do exist and are in the possession of [PPADB]”
Upon such conviction, the judge ordered PPADB (whose motto is “keep tenders clean”) to surrender the missing documents to the Registrar and Master of the High Court by December 14, 2017. The documents were surrendered a day shy of that deadline and came not from PPADB itself but the Ministry of Basic Education, the stand-alone, hived-off half of what used to be the Ministry of Education and Skills Development.
The case in question relates to a tender that conducted by way of selective tendering process. Among the companies responding to the tender was Kinder Educonsult whose Managing Director, Phondy Morwaeng, did at one point, complain to the Office of the President (OP) when the adjudication process took a little too long. At the centre of the case is a savingram that was written by the Director of Basic Education, Annah Maruatona, on June 1, 2016 and addressed to the Chairperson of the Ministerial Tender Committee (MTC). The savingram reveals that as the procuring entity (PE), the Department of Basic Education ran a background check on the four companies invited to tender, contacting the Registrar of Companies and Intellectual Property Authority (CIPA) which, in turn, confirmed “that the companies in question are duly registered with the authority.” Oddly, the savingram makes no mention of Kinder Educonsult which, as it happens, was the only one that submitted a tender and was recommended for the job.
Having earlier agreed to a selective tendering process, the MTC changed its recommendation to open tendering. Unhappy with this turn of events, Kinder Educonsult unsuccessfully appealed to the PPADB and later the Independent Complaints Review Committee (ICRC). Still dissatisfied, the company approached the High Court with a review application. The latter requires the release of all documents relevant to a dispute. That was how the savingram (which was submitted by PPADB) came to occupy a central position in this matter. Rather than answer questions, the savingram raised them, primarily because it makes reference to annexures that were not enclosed. That is indeed what Justice Kebonang said in his ruling last year: “What is clear from the savingram is that there were indeed eight annexures appended to it. Four of the documents referred to in the annexures were made available by [PPADB] to the applicant.”
During oral argument, Kinder Educonsult lawyer, Munyaka Makuyana, pointed a finger of blame at the ICRC and PPADB for “concealing certain documents” which are important to the review application. He said that his client only became aware of such documents after lodging its case. Those documents include the following: records of proceedings that led to the decision to start the tendering process afresh; a letter from CIPA; records compiled by a now deceased officer only referred to as “the late Nkgau” about his dealings with representatives of the four companies; an evaluation report from the Director of Basic Education to the MTC Chairperson, debriefing notes, minutes of a meeting “between OBS and Supplies Division” as well as the entire bundle of documents that the Department of Basic Education brought to that meeting.
In her client’s defence, attorney Manyoloi Seru told the court that in the exercise of its administrative adjudicative functions, the ICRC relies on documents submitted to it by PEs and the PPADB, that none such had been submitted and that the Committee was not aware that PPADB had submitted an incomplete record. She successfully argued that the court could not make a judgement against it. Conversely, PPADB’s attempt to make the same argument was not as successful. Its lawyer, Busang Manewe, submitted that while the Board may not have had all the documents relating to the disputed tender, it nonetheless had sufficient information to render a decision. He further submitted that there was a dispute of fact over whether the Board received or was ever in possession of the documents in question. However, these and related arguments didn’t sway the court.
“I must say I had great difficulty in understanding the position taken by [PPADB]. The record of proceedings was discovered by it. Of the eight documents that the applicant sought discovered, [PPADB] discovered four. No affidavit was filed explaining where the rest of the documents were,” Justice Kebonang said.
That was the basis upon which he ordered that PPADB should surrender the missing documents. Interestingly, the documents now come from a completely different source ÔÇô the Department of Basic Education in the Ministry of Basic Education. The latter’s director, Ndondo Koolese, states in an affidavit how he “searched and retrieved almost all the documents sought.” On the other hand, an affidavit deposed to by a PPADB official, Lucas Kennekae, only notes an unminuted meeting with colleagues of his and officers from the Ministry of Basic Education.
“The purpose of this meeting was for us as officials of [PPADB] to understand issues surrounding the tender and subject of this litigation,” Kennekae says in his affidavit.
Among those documents is an evaluation report that summarises the evaluation process. The Department of Basic Education wanted qualified companies to supply teaching and learning materials for government primary schools that offer reception classes. On the advice of the MTC, the tender was divided into two lots: Lot 1 for “easy-to-get” stationery items and Lot 2 for “hard-to-get” items “other than stationery.” The latter are listed as scissors, play dough, play dough cutters, play dough cutting wheel, play dough rolling pin, wooden puzzles, wooden building blocks, letter blocks, threading material and strings, paint and painting materials, paint brushes, aprons, balls, hula hoops, skipping ropes and trampolines.
The evaluation report says that Kinder Educonsult, which had the financial backing of Capital Bank, was the only prospective supplier to submit a tender for Lot 2. At the end of the process, a three-member panel comprised of Hendrick Setshogo, Mousica Mukamambo and Dikeledi Otukile agreed that “Kinder Educonsult is recommended for award of Lot 2 after satisfying criteria at all evaluation stages. The offer is reasonably priced as well.” The price was P8 980 624.80.
The was the most lucrative tender that the company had won, having won one valued at P4.8 million from the same department in 2015.
Nothing on the record suggests that Morwaeng ever got to learn that her company had won. What is on the record is a debriefing meeting where she was told by Maruatona that the MTC had rejected the outcome of the tendering process because some listed bidders couldn’t be contacted and that there was no proof that the companies that the department claimed to have invited had actually received such invitation. It didn’t help that at this stage, Nkgau was deceased. The MTC’s instruction was the tender should be re-advertised through open tendering in order to “give everybody opportunity for fair competition.” The department appealed that decision, providing evidence that it had followed all the necessary steps but the MTC would not be swayed. That was when Kinder Educonsult went the legal route and all that other drama unfolded.