Thursday, October 22, 2020

PPADB ‘aided and abetted breach’ of procurement law

The Public Procurement and Asset Disposal Board (PPADB) is the custodian of procurement law but in a damning High Court judgment, is found to have “aided and abetted” what Justice Dr. Zein Kebonang suspects to be a potentially “corrupt” tendering process.

Two weeks ago, the Board was dragged to the Gaborone High Court over its role in the awarding of a lucrative multi-million pula tender for the office accommodation for a Ministry of Finance and Development Planning department. Arguing the Board’s case, Advocate Schalk Burger from South Africa said that there was nothing to hold the Board liable for. He argued that with PPADB never having adjudicated and awarded this tender, there was no legal basis upon which the Board should be construed to have failed to discharge its statutory duties. Taking cue from the judge, he whittled down his argument to four simple words: “No award, no case.”  His interpretation of procurement law is that PPADB gets involved in the process only after procuring entities (MFDP in this case) evaluate tenders. The ministerial tender committee (MTC), which is a sub-committee of the Board, had carried out such evaluation, recommending Zambezi Motors over Varsha Enterprises.

Burger was facing off against a countryman and counterpart of his, Advocate John Peter, who represented Varsha. Peter argued that MTC’s decisions bind the Board. Once before, Peter represented PPADB in an almost similar matter at the Court of Appeal. Scrolling on the iPad in his hand, the lawyer read an excerpt of a judgement in which the latter court held that the Board is supposed to exercise “skeptical and penetrating scrutiny of what a procurement entity does.” The argument he presented was that the Board had failed to exercise such responsibility. In agreeing with this and other arguments that Peter advanced, Kebonang noted that Burger had attempted to “stretch legal sophistry.” The judge enumerated at length the role that the Board had played in a process that was essentially skewed in Zambezi’s favour. For example, on December 15 last year, the Board published a notice indicated that the Zambezi’s bid had been “approved.” While allowing that PPADB doesn’t evaluate bids, Kebonang pointed out that it was the Board that endorsed the MTC decisions and that it was not bound by decisions made by procuring entities (PEs) below it.

The court also found the Board to have failed its statutory responsibility to ensure that the playing field is level and that PEs fully complied with provisions of the Public Procurement and Asset Disposal Act. Summarising the latter point, the judge asserted that duties imposed on the Board by the Act are “mandatory and not discretionary.”

There is some irony to PPADB being characterised in the manner Kebonang’s judgement does given what happened some five years ago. In November 2011 and under the hand of its CEO, Bridget John, the Board signed a memorandum of understanding with the Competition Authority and the Directorate on Corruption and Economic Crime (DCEC) to cooperate in dealing with fraud, deception, collusion and bid-rigging. Such cooperation was to take the form of facilitating “timely sharing of relevant information to support the work of each party and to collectively contribute to the creation of good business environment that inspires investor confidence.” Ironically, the Board is itself being accused of failing its statutory duty to such extent that its role looms large in what the court suspects to be a “potentially corrupt” tendering process.

While PPADB doesn’t come out smelling of roses, it will not suffer the same public humiliation as the finance ministry. Six officers from the latter, who include a Deputy Permanent Secretary, have been referred to the DCEC. The other five are members of the MTC whose belongingness straddles MFDP on account of being its employees and PPADB on account of managing the ministry’s tendering process on its behalf.  

 

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