‘Fraudulent’ BDF tender suspended
Mpho Mokwape | Tuesday August 6, 2024 09:04
Justice Boipuso Makhwe suspended the tender by granting Net Builders, a construction company, an interdict following its decision to approach court after suspecting that its tender document was tempered with. According to the judgment, the company had in 2022 responded to a tender by the BDF for construction of the organ’s facilities and around April it was allegedly rejected for giving a project mobilisation of 52 weeks. Net Builders then alleged its tender document was tempered with as it had given a two week projection contrary to the alleged 52 mentioned when it was rejected. In the judgment, Justice Makhwe made the interim interdict final saying in her view there need to be an investigation to ascertain whether indeed what is alleged happened as the said allegations could have had an impact in the applicant's bid disqualification. “If the interdict is not granted, the applicant stands to suffer irreparable harm as a contract would have been signed and the matter would be a moot exercise. Having said that, it is my considered view that the applicant has met the requirements of an interim interdict. “As such I find that the point raised by the respondents that the applicant has not met the requirements for an interim interdict must fail,” she said.
The judge explained that according to the applicant, despite its complaint, it was never called for a hearing as anticipated under Section 104 (3) of the Public Procurement Act. She said Net Builders had insisted that it had stated two weeks and not 52 weeks, that there had been tempering with its bid document and made it appear as if it had stated that it would mobilise the project in 52 weeks. “This, according to the applicant was the sole reason for its disqualification and award of the award to the 3rd Respondent being Zebra Construction. The applicant therefore intends to seek a review of the Accounting Officer's decision as it believes that its complaint was never properly addressed, hence its request that it be granted an interim interdict,” Justice Makhwe said. Justice Makhwe further grated the interdict by citing that “In the Hitecon matter cited supra, Justice Zein Kebonang states that ordinarily, where an interdict is sought pending the hearing of a review application, the Court must, in deciding whether to grant it or not, peep into the grounds for review filed to determine whether there are strong prospects of success. I totally agree with him”. She pointed out that Net Builders stated that it was second after Sharps Electrical which was awarded the Francistown project and that had there been no tempering with its bid document, it would have been awarded the Thebephatshwa project and not Zebra Construction.
Makhwe stated that it is the applicant's aversion that the decision made by Ministry of Defence and Security and or BDF to award the tender to Zebra Construction was unlawful, illegal, irrational or grossly unreasonable as it had been unfairly or unlawfully disqualified due to tempering with its bid documents, as such an interim relief must be granted to allow it to seek review of the decision to disqualify it. “In consideration of the applicant's contentions, I am satisfied that the applicant has met the requirements for an interim interdict in that it has alleged and or made serious allegations of impropriety or fraud in his founding affidavit,” said Makhwe. Meanwhile, according to the background of the tender, in 2022 the BDF floated tender DS/ BDF067/2022- 2023- Construction Completion of proposed facilities 858&984 for the BDF TAB. According to court papers, Net Builders submitted its bid to the tender and per letter dated March 7, 2024, the company was informed that its bid was not successful. “Upon enquiry on why it was disqualified, the applicant was informed that its mobilisation period of 52 weeks was unreasonable,” read the documents.
On April 19, 2023, Net Builders reportedly filed a complaint against the decision to not recommend it for award; that it had reasonable suspicion that its document had been tempered by inserting the 52 weeks as mobilisation period as it had in its bid document stated two weeks and not 52 weeks as its mobilisation period. According to Net Builders, the font used in tempering clearly indicated foul play and also stated that the two weeks, which is 14 days, is also reflected in its program of works. Net Builders revealed that the 52 weeks turned out to be a mystery and it was the company’s contention that following its complaint to the Permanent Secretary, it was never called for a hearing of as anticipated under Section 104 (3) of the Public Procurement Act. The Respondent only responded on April 11, 2024 dismissing the complaint.
Following the dismissal of its complaint, the Applicant filed an Appeal before the Tribunal. Reportedly the appeal is yet to be heard and in opposition, the respondents had raised points that, the application is not urgent and that the applicant has not exhausted all local remedies as provided for under the Public Procurement Act.
The respondents had also mentioned that Net Builders has not satisfied the requirements for an interim interdict.