Melco Structure being the aggrieved party contends that it put in the work for Hitong Holdings which is the manufacturer of the Smart Meters.
The complaint company following its Distribution agreement with Hitong Holdings was tasked with advertising and procuring the meters to the public which it ultimately advertised to WUC, the efforts they argued made Hitong Holdings win the WUC tender to supply the Meters.
“Melco Structure had a duty to market, promote, and procure the purchase or sale of the products by or to customers at a mutually agreed price. We duly fulfilled our obligations under the agreement between the parties and marketed the product (smart meters) to WUC and other entities. Through our own efforts and as per the agreement between the parties, introduced and marketed the Smart Meter technology and specifically, smart meters, to WUC prior to the issuing of the tender by Water Utilities,” stated the company.
In Kemmonye Sekati’s founding affidavit on behalf of Melco Structure, he outlines the background to the dispute.
According to the affidavit, the two companies are parties to a Distribution Agreement concluded on November 10, 2021, in Gaborone, and in terms of the agreement, Hitong Holdings granted Melco Structure exclusive rights based on performance standards agreed in the Service Level Agreement, the right to sell and distribute Smart Water Meters manufactured by Hitong Holdings.
“The parties had agreed to collectively solicit business from different companies, customers, and organizations which include WUC. The company would, in terms of the agreement be paid as follows for its services, supplied with meters at the cost of P2400 per meter which it was to sell,” reads the affidavit.
As per the court documents, It is the contention of Melco Structure that it was allowed to sell the provided meters at its own price, and in terms of the agreement, the company had a duty to market, promote, and procure the purchase or sale of the products by or to customers at a mutually agreed price.
Sekati explained that the company duly fulfilled its obligations under the agreement between the parties and marketed the product (smart meters) to WUC and other entities. Through its own efforts and as per the agreement between the parties, it introduced and marketed the Smart Meter technology specifically, smart meters, to WUC prior to the issuing of the tender by Water Utilities.
Furthermore, through its efforts and as per the agreement between the parties, Melco Structure introduced, facilitated, and integrated Hitong Holdings’ smart meter system to the WUC back-end system through Siemans (PTY) LTD.
He stated that Siemans company, at the material time, was the custodian of the WUC back-end system, and Melco Structure built capacity, financially and technically on behalf of Hitong Holdings, which enabled it to respond competently to the tender and demonstrated its ability to deliver the tender through previous works delivered to other entities in Botswana.
“Specifically, and with regard to the tender awarded to Hitong Holdings by WUC, Melco Structure facilitated and built a business relationship between Siemans company,” said Sekati.
According to Sekati’s affidavit, Melco Structure contended that by leveraging the relationship between Siemans and Hitong Holdings and WUCt, Hitong Holdings had an advantage in winning the tender.
He revealed that since Siemans is the company that was contracted by the WUC to provide the back-end system for the smart meter technology, the tender, which Hitong Holdings won, was mainly about the installation of the smart meters.
“Melco Structure by introducing Hitong Holdings to Siemans, put it at an advantage as it was able to have access to the technology WUC was using for its intended smart meters. Hitong Holdings was eventually awarded a tender for the supply, installation, management, and maintenance of smart meters to WUC in the amount of P296 932 615.00 (Excluding VAT),” he explained.
Melco Structure argued that Hitong Holdings has breached the agreement between the parties in that it refuses to pay it as per their agreement in respect of the tender. The company said to date, Hitong Holdings has failed, refused, or neglected to pay it as per the Distribution Agreement and that it is currently undertaking the works associated with the tender, and it is being paid by WUC for such.
“Melco Structure is entitled to payment for the work done, specifically for its initiative and marketing as well as participation in the tender awarded to Hitong Holdings by WUC,” read the court documents.
