Friday, October 23, 2020

ZAC Construction back in court after PPADB withholds P390m tender again

The Public Procurement and Asset Disposal Board (PPADB) has once again refused to award a multi million Pula tender to millionaire businessman Nicholas Zakhem’s ZAC Construction, despite an order by the Court of Appeal (CoA) for the matter to be remitted to the board for consideration. 

The CoA had set aside PPADB’s decision not to award the tender for a P390 million infrastructure development project to ZAC Construction, ruling that the tender bid should be remitted to the PPADB for reconsideration. Under the Ministry of Lands, the infrastructure development project in Metsimotlhabe Block IV includes 52 kilometres of roads and storm water reticulation, sewer reticulation as well as telecommunications civil works. This week, PPADB argued before Justice Lakhinder Walia that ZAC Construction’s tender application failed to meet set technical requirements as it did not include a critical path. The critical path is defined as the longest sequence of activities in a project plan. The path must be completed on time for the project to be completed on the due date. 

Led by advocate Geoff Budlender, the PPADB legal team revealed that the re-examination of ZAC Construction’s application following the CoA ruling was conducted by one Augustine Tema, an engineer with 21 years experience.

Advocate Budlender said Tema’s finding was that ZAC Construction’s tender programme did not have a critical path or had failed to show a critical path contrary to section 5.4.2 (b) (iv) of the invitation to tender (ITT), in so far as it had only tasks without separating or identifying the critical activities. PPADB further argued that it is was not enough to submit, as did ZAC Construction, a programme of work activities and sequence of construction without demonstrating which of those items or activities will be critical in the project.

“Such failure could affect the construction programme and thus result in delay, costs and time overruns. By now, it is a settled rule of public procurement that a tender should speak for itself. Its real import may not be tucked away. We submit that it is undesirable and in fact inappropriate that an evaluator of a bid or bids such as PPADB should be required to speculate as to the import of a competing bid,” argued Advocate Budlender.

In response, Advocate John Peter, who appeared on behalf of ZAC Construction, argued that his clients’ bid contains a critical path within the requirements of the ITT. He also said that the question of compliance is not a matter of discretion. 

“There is no provision in the PPADB Act or regulations that give discretion to the PPADB to exclude from consideration a bid that is technically compliant,” said Peter.  

He added that ZAC Construction’s application was for a review of the decision of the PPADB not to award the tender to it, not a review of Mr Tema’s finding or opinion. The case dates back to October last year, when Lobatse High Court Judge Abednigo Tafa ordered the PPADB to award the tender to ZAC Construction, saying it was improper for the PPADB to cancel the award after engineers from the Ministry in conjunction with consulting engineers had collectively considered ZAC Construction to be compliant in all respects. After the ruling, the PPADB appealed Tafa’s decision before the CoA arguing that ZAC Construction’s application for judicial review at the High Court was premature. 

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