Tribunal slams egregious Ministry of Lands and Water Affairs
Innocent Selatlhwa | Monday November 25, 2024 12:33
The Tribunal led by Judge President Justice Kabelo Lebotse has slammed the Ministry, led by Dr Kekgonne Baipoledi as the Permanent Secretary, for what they termed egregious conduct in the execution of their mandate relative to the tender. Further, procurement processes at the Ministry are to be reviewed and the Directorate on Corruption and Economic Crime is set to sniff the ministry. The Tribunal set aside the decision by the Ministry to award a water tender valued at P1.8 billion to China Civil Engineering Construction Corporation (Pty) Ltd and Zhong Gan Engineering & Construction Corporation (Pty) Ltd (collectively referred to as China Civil). This was after G4 Civils (Pty) Ltd, Landmark Projects (Pty) Ltd and Asphalt Botswana (Pty) Ltd collectively referred to as Tawana JV, stood aggrieved by the decision of the then Ministry of Lands and Water Affairs, not to award the JV Tender No. POU/ MLWA/ DTS/ NCOJANE WATER SUPPLY WORKS/ 0158/ 09102023, a Works Contract for Detailed Designs and Construction of Ghanzi South & Kgalagadi North Villages Water Supply Project.
The Tribunal states that it was evident from the papers filed by the ministry in its defence that it made a decision to withhold material facts available only to it on account of its position as the procuring entity. They state that the background supplied by the ministry, though responsive to the specific issues raised by Tawana JV, lacked candour, even if they limited it to the financial evaluation stage that formed the basis of the applicants' complaint. “The Ministry perpetuated a fallacy that in its calculations, it had excluded contingencies and escalations. A cursory peek at the denominator used shows that Pl, 577, 362, 030.33 is the total amount proposed by the Applicants inclusive of escalations and contingencies. This is also an issue that was highlighted at debriefing, and in the Applicants' complaint as well as their appeal. A concession had to be wrestled out of the Ministry at the second hearing of this matter, notwithstanding the strong man team it assembled that included the privilege of an in-house lawyer. This conduct does not reflect well on the procuring entity. Its duty is to be transparent, fair, forthright, impartial, and facilitative of the Tribunal's business,” they state. The Tribunal further states that it became clear with the filing of the evaluation reports, the subpoena and appearance of the substantive Accounting Officer (Baipoledi) and Director- Procurement Oversight, that the ministry was in all likelihood actively working to conceal a scheme to favour China Civil at all costs in the tender. They further state that the gravity of the revelation that the technical evaluation and the re-evaluation reports show that China Civil failed to meet the minimum 60% score per category to progress to financial evaluation, necessitated the attendance of the highest-ranking procurement officials of the procuring entity. They state that Baipoledi had to be represented by Mr Raitoko, as he was unavailable. The procurement oversight office had not been represented at all in the proceedings preceding the subpoena. The Tribunal further state that Baipoledi was less than candid with the Tribunal in his evidence, although he took oath; and the import thereof, though trite, was spelt out. After traversing the relevant portions of the technical evaluation criteria in the ITT, particularly the provision that stated as follows: 'In addition, a Tenderer must score a minimum of 60% in Category Nos. i, ii, iii, v and vi of the marks available for each of those categories, in order to be considered technically compliant.'
The Accounting Officer appeared ill prepared to take the Tribunal through this part of the criteria, often having to be reminded not to veer off to the criterion on the minimum qualifying score of 75% of the total technical score. “It eventually became clear that the motive was to conceal the outcome of the evaluation of China Civil on the 60% criteria, and when the facts could not be concealed, Baipoledi brazenly made a false claim that after re-evaluation, the marks of China Civil were revised up enough to meet the pass mark of the technical stage. The contents of the evaluation report that he was referring to, belied this assertion, in black and white, but the Tribunal had to jump hoops and loops to elicit a reluctant admission from Baipoledi that his account was false and an attempt to mislead the Tribunal,” they state. The Tribunal further states that China Civil were catapulted into the financial evaluation stage under the pretext of engendering competition, an option that was suggested to Baipoledi by the Procurement Oversight Unit (POU) in the adjudication report. They, however,noted that in the same adjudication report, the POU observes that it was improper for China Civil to be assessed beyond category 1, which they failed to attain a 60% score on, when the ITT called for the end of evaluation of a bid at the point at which a bidder is not eligible for final marks or rating. Strangely, in the same breath, the POU recommended further progression of this bidder nonetheless, not just for further evaluation but to a different and final stage. “The accounting officer conceded at the hearing that there is no method that engenders competition more than the open domestic bidding method used in this tender. The promotion of bidders who have failed evaluation is the antithesis of competition. The accounting officer and the POU were blind to the advantages that came with recommending a 100% citizen contractor, and a contractor whose offer was considerably less than that of the bidder they were comfortable violating the law for,” they state.
The Procurement is also not amused that the procuring entity has shown a pattern of behaviour where all recommendations by the evaluation committee were rejected, which recommendations favoured Tawana JV, at both the technical and financial stages of the evaluation. In both instances, decisions that were made, favouring China Civil, have been shown to be riddled with patent legal and/or arithmetic/mathematical errors. “Given an opportunity to explain this conduct, the accounting officer could only venture to say that the cumulative effect of the omissions and commissions of the procuring entity is that the tender is unresponsive. I do not disagree that the tender is unresponsive, but that certainly is not the end of the story, especially when questionable decisions are made at the highest levels by the very officials charged with oversight and accountability, which the same officials then work hard to conceal, even at the risk of violating oath,” they stated.
The Tribunal came to the conclusion that a review of the procurement practices of the ministry is warranted. They also opined that there may be a deliberate scheme to subvert the law, a matter which is the purview of other oversight bodies, not the Tribunal. “This matter is therefore referred to the Directorate on Corruption and Economic Crime (DCEC) for further investigation in terms of Regulation 17 of the Public Procurement (Tribunal) Regulations,” they stated.