The Tender Board of Namibia was made to swallow humble pie recently when its decision to award the N$200 million tender for the construction of the new head offices for the Ministry of Communication and Information Technology was reversed in the High Court.
This matter also presents a rare case in which the Tender Board conceded defeat and admitted to having committed a ‘bona fide’ mistake in awarding the tender to Amupolo Building Construction CC despite visible shortcomings in the latter’s tender submission in respect of compulsory Tender Conditions.
The urgent application was launched by a Joint Venture between Econo Investment (PTY) Ltd and Mansudae Overseas Projects Architectural and Technical Services (PTY) Ltd as first applicant whilst the two individual companies served as second and third applicants respectively.
The Chairperson of the Tender Board, the Tender Board, the Minister of Information and Communication Technology, Amupolo Building Construction and the Permanent Secretary of the National Planning Commission are named as the first, second, third, fourth and fifth respondents in court documents.
Econo Investment prayed for the intervention of the High Court following a decision by the Tender Board to award the tender to Amupolo Building Construction despite the latter not meeting several general tender requirements. Econo Investment is owned by Windhoek lawyer Rodgers Kauta, who also serves as its Managing Director.
Econo Investment was side-lined when it was discovered that its Joint Venture partner, an international entity, did not meet the requirements of the Affirmative Action Act as enforced by the employment equity commission.
Rodgers Kauta argued that in any event, there is no requirement in the General Tender Conditions, or instructions to tenderers, as was decided at the Tender Board meeting of 20 February 2014, that in the case of a joint venture, both joint venture partners must each submit each and every document called for by the tender and that each will be assessed individually.
“One would expect that the party to be assessed is the joint venture itself, based on its constituents,” Kauta argued. He told The Villager that he is satisfied with the decision that emanated from the High Court and that he is now anticipating a different outcome from the Tender Board a soon to be convened Tender Board meeting. “Our noncompliance with the law as administered by the Employers Equity Commission was condoned because our Joint Venture (JV) is not in any position to employ people as yet,” he added.
Kauta also argued that the fact that his company’s tender submission was recommended not only by the Principal Agent and the line Ministry, but also by the Committee of the Tender Board points to the fact that the company’s tender was considered compliant.
Be that as it may, an investigation by The Villager corroborated Kauta’s claims that tenderers in a JV are not assessed individually.
Recently, a N$4 billion tender for the construction of a bulk fuel storage facility near the harbour was awarded to a joint venture company that includes the Roads Contractor Company (RCC) and China Harbour Construction Engineering Company (CHEC). The Villager has established that whilst the tender was awarded earlier this year, CHEC’s Affirmitive Action Certificate was only finalised on the 18th June 2014 whilst that of RCC is still pending. CHEC also entered into a JV with Namport for the construction of container terminals late last year in an N$3 billion without an Affirmative Action Certificate.
Approached for comment, Chairperson of the Tender Board Committee Ericah Shafudah referred all queries to Leone du Toit who is the Public Relations Officer (PRO) for Tender related matters as well as to the Secretary to the Tender Board, Ms. Kapenda
Shortcomings and prejudice
In his application to the High Court, Kauta maintained that the Tender Board, unfairly discriminated against his company in favour of Amupolo Building Constructions when it decided to disqualify the tender submission of his company on the basis that the third applicant did Mansudae Overseas Projects Architectural and Technical Services (PTY) Ltd did not provide an Affirmative Action Certificate, whereas Amupolo Building Constructions was not disqualified at all for failing to comply with that requirement.
He further accused the Tender Board of having displayed undue bias in favour of Amupolo Building Construction by failing to hold the latter to the requirement of submitting a detailed description of the proposed methodology for employment creation and training within the contract or failing to apply its mind to the fact that Amupolo Building Constructions with this tender requirement.
The lawyer maintained that Amupolo Building Construction was again favoured by the Tender Board when the latter decided to disregard the fact that the company did not provide a construction programme, thus cancelling all points of all the tenderers in respect of construction programme and allocating additional 20 points to Amupolo Building Construction in respect of equity.
Equally worrisome according to court documents which were filed by Kauta at the High Court is the fact that the Tender Board failed to apply its mind properly to the fact that the Technical submission of Amupolo Building Construction did not make the minimum threshold of 60%.
High Court Judge Shafimana Ueitele ordered that Econo Investments’ initial noncompliance with the requirements relating to forms and service be condoned and that the matter be heard on an urgent basis.
He further ordered that the decision of the Tender Board, which was taken on the 20th February 2014, to accept the tender submission of Amupolo Building Construction in respect of the tender which led to the awarding of said tender to said company be reviewed and set aside. Also to be reviewed and set aside according to Judge Ueitele’s order was the decision by the Tender Board to disqualify Econo Investments.
The Tender Board was ordered to re-evaluate the tender submission of all qualifying tenderers in respect of the tender, including the tender submission of Econo Investment, but excluding the tender submission of Amupolo Investments CC, and to subsequently award the said tender according to its rules and procedures. All the respondents in the matter, with exception of the Ministry of Communication and Information Technology, were ordered to pay the Econo Investments legal costs jointly and severally the one paying the others to be absolved, such costs includes the costs of one instructing and one instructed counsel.
The Villager is reliably informed that the tender will convene a meeting on Thursday, July 31, 2014, where the committee is expected to adhere to the Court Order. Econo Investments submitted a bid of N$171 million whilst Amupolo Building Construction tendered at N$189 million. Namibia Construction came in higher at N$209 million.