Tuesday, October 27, 2020

Whistle-blower’s letter under door reveals sham

A whistle-blower has revealed how the Public Procurement and Asset Disposal Board (PPADB) and  the Department of Building and Engineering Services (DBES) may have conspired to rig a construction tender worth in excess of P100 million.

The damning revelation is contained in a judgment delivered recently by Lobatse High Court Justice Michael Leburu. The tender was for the construction of an anti-poaching unit in Kang.

The court documents detail how the Department of Building and Engineering Services (DBES) as the procuring entity, arm-twisted consultants who had recommended Trust Construction and Engineering (PTY) Ltd to instead recommend a non-responsive bid from Hactec (Pty) Ltd t/a Consco Botswana to PPADB.

Leburu found that PPADB “as a repository of public power, when confronted with the irregularity perpetrated by DBES, ignored the factual information presented before it and turned a blind eye.”

He also found that “PPADB paid lip service to the meritorious complaint lodged by the applicant (Trust Construction and Engineering) and thus exhibiting public duty dereliction”.

Leburu said: “Had it not been for a whistle-blower, DBES unprocedural and wrongful practices could not have been exposed.”

Court records show that the tender from Hactec was found to contain substantial arithmetical errors: “At page 5/35, item B ‘narrow width not exceeding 300′ which was indicated as Quantity 141xRate 8 800 and amount P13 818 (thirteen thousand eight hundred and eighteen Pula) instead of P1 240 800 00 (One million two hundred and forty thousand eight hundred Pula).”  

The second lowest tender in the evaluation criteria was for Trust Construction and Engineering (Pty) Ltd, which offered an achievable construction period as stated by the evaluation committee.

It also emerged that the Evaluation Committee found that the Trust Construction Engineering’s bid was 10.47 percent below the Pre-tender Estimate. Court records revealed that during the evaluation stage, consultants wrote a letter to Hantec T/A Consco, asking the contractor whether “your tender contains errors amounting to P1 223 733 00 against your tender; could you confirm whether you still stand by your tender or otherwise. Further, page 911 is missing on Part 1 of 2.”  

The court records state that Hantec T/A Consco maintained and stood by its tender bid; despite the errors pointed out by the evaluating consultants.

“In fact, DBES, in its endeavour to have the tender awarded to Hantec T/A Consco changed the figures in the Bill of Quantities by altering the rate on item B page 5/35 from P8 800 to P88.00. The said alteration of the rated violated section 41 of the Public Procurement and Asst Disposal Act (the PPAD Act) which only permits a correction of pure arithmetic errors and not the alteration of the rate,” state the documents.

After all the necessary evaluation was conducted, the Evaluation Committee recommended that “having regard to the foregoing, we would recommend the Acceptance of the Lowest Tender of Messrs Trist Construction and Engineering (Pty) Ltd for a Fluctuating Contract Price of P114 632 657 00 with contract period of 504 calendar days.”

According to court records, “despite this recommendation, the procuring entity, DBES, singularly favoured Hantec T/A Consco, whose bid had been found to contain substantial arithmetic errors and was non-responsive.”

Leburu found that “DBES instructed the consulting engineers of the Evaluation Committee to change their initial recommendation in favour of Hantec T/A Consco. The consultants resisted the instruction but were ultimately pressurised to change their recommendation.” This was confirmed by Kodziba Palalani from Third Dimension Consultancy during a meeting that was called by the second respondent.

He states that: “We did stand our ground initially but pressure was brought to bear on us to change our recommendation, we conceded and subsequently recommended Hantec for award of the tender.”

Leburu found that the consulting engineers changed the recommendation and recommended Hantec t/a Consco at the instance and behest of the BDES

The recommendation to award the tender to Hantec t/a Consco was submitted to PPADB for award of the tender. The PPADB awarded the tender to Hantec t/a Consco Botswana and this was published in a newspaper on September 29, 2015.

Court documents reveal that sometime in October 2015 a whistleblower informed Trust Construction and Engineering by way of an envelope which was slid under its door that the contractor was initially recommended for award of the tender and further that DBES pressurised the Evaluation Committee to change its initial recommendation in favour of Hantec t/a Consco.

Trust Construction and Engineering subsequently wrote to PPADC, outlining DBES underhand tactics.

The PPADB by letter dated  October 30, 2015 dismissed Trust Construction and Engineering’s complaint and stated that “in consideration of the complaint, the Board made the following observations; “The Board does not have any records that show that your company was ever recommended for award and the recommendation changed later.”

The letter further states that:  “The method adopted by the department for correction of arithmetic errors does not allow the tender prices to be changed so, even if Hantec could have made any arithmetic errors , the errors could have been corrected and/or adjusted against the P&G’s item without changing their bid price.”

Trust Construction, in a bid to answer PPADB’s comment that it was not in possession of the initial recommendation wrote a letter to PPADB advising it to obtain such information from DBEC.

Leburu noted that “…Surprisingly, PPADB was not interested in obtaining such information and turned a blind eye and states that it stood by its rejection of Trust construction complaint.”

Leburu observed that that “PPADB as a repository of public power should have exhibited impartiality and fairness in discharging its functions in terms of PPADB Act; it should have proactively sourced such vital information.”  

“This information was crucial and pertinent to the resolution of the compliant to PPADB. No wonder the Independent Complaints Review Committee (ICRC) was scathing in its attack towards the lip service exhibited by the PPADB, as reflected in its judgment,” he said.

According to the Independent Review Committee (ICRC), DBES even gave false evidence by stating that there had been a gross misplacement of a decimal point to the quoted price by Hantec whereas as a matter of fact there was no such decimal point in the tender documents.

Leburu said had it not been for “the whistleblower, DBES’s unprocedural and unlawful acts would not have been unearthed and revealed, the tender would now be executed by a contractor whose tender bid was non-responsive and risky.”

He said it was a hallmark of any adjudicatory tender process and system that a successful party should be rewarded for their hard work, creativity and presentation.

“Such a public interest imperative will thus enhance the legitimate expectation of a fair and transparent bidding process. If not, the tender process would remain a sham and would be subject to unscrupulous capture from self serving groups like DBES,” he warned.

He awarded the tender to Trust Construction and Engineering for a fluctuating contract price of P114 632 657 00 (one hundred and fourteen million, six hundred and thirty two thousand, six hundred and fifty-seven (with contract period of 504 calendar days).

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Digital edition of The Telegraph, October 28, 2020.