Africa-Press – Eswatini. The Independent Review Committee (IRC) has set aside the Mpakeni Dam tender awarded to Knight Piesold Swaziland and Dlamini Gibb Consortium by Eswatini Water and Agricultural Development Enterprise (ESWADE).
This comes after Italian company, Studio ING. Pietrangeli S.R.L Consulting Engineers (SP) took the matter to court, stating that the IRC was taking too long to decide on the matter.
However, in issuing its ruling, the IRC did not state whether its decision to issue the ruling was influenced by the High Court case.
According to the IRC, the matter has a protracted history in particular between the Applicant and the Respondent and this is evidenced by the back and forth correspondence culminating to the present application.
The IRC indicated that it had anticipated to deliver this ruling earlier, but for reasons beyond its control owing to the nature of the dispute and volumes of documents which were accessed, has caused the delay. The relevant legislation referred to as the Act in the ruling is the Public Procurement Act of 2011.
In its ruling, the IRC said the decision taken by ESWADE to reject the SP’s bid in respect of tender Number ESWADE/0610 for the supervision services for Mpakeni Dam and Associated works, including main access road is reviewed and set aside.
“That the decision taken by the ESWADE (second impugned decision) to award the tender to the second respondent is hereby reviewed and set aside.
“The ESWADE’s cancellation decision is hereby upheld and confirmed subject to compliance with section 27 (5) of the Public Procurement Regulations, 2020. Given the peculiar circumstances of this matter, and the applicant having partially succeeded in the application for administrative review, each party shall pay its own costs,” ruled the IRC.
ESWADE Chief Executive Officer, Sam Sithole, said as ESWADE they were happy with the ruling because they have complied with the regulations. Sithole said the ruling exonerates them from what people were thinking.
The ruling comes after ESWADE in October 2022 issued a tender; ESWADE/0610 for construction supervision services for Mpakeni Dam and associated works, including main access road and Applicant expressed its interest by bidding for the tender.
At the conclusion of the tender evaluation process, the tender committee recommended that the tender be awarded to SP as it had emerged to have been scored higher than the other bidders.
“Surprisingly, a notice of intention to award was ultimately issued much against the tender evaluation committee,” submitted SP to the IRC.
SP cried foul that, ESWADE took three decisions that have individually and collectively systematically ensured that the tender was not awarded to them.
The IRC was informed that these three decisions were the nucleus of the cause for complaint; in particular in the manner these decisions were taken and conveyed to SP.
SP complained that, on February 15, 2023, the ESWADE Board decided to reject its bid in response to the tender.
This decision the IRC referred to as the first impugned decision.
On the same day, ESWADE corresponded with SP that it intended to award the tender to Knight Piesold Swaziland. This was referred to as the second impugned decision, according to the IRC.
On May 9, 2023, ESWADE issued a cancellation of the entire tender, which was referred to as the third decision.
“With the above three impugned decisions, on both the main notice of motion and the amended notice of motion, the committee has noted that the applicant has also sought a termination of the procurement process,” the IRC stated.
SP also prayed that if the tender was not awarded to them, it should be at least be terminated.
“At the commencement of the enquiry hearing, we adopted an approach which all the parties agreed to, that the decision question surrounds the cancellation decision.
As such, ESWADE representative, Mntshali conceded that the first and second impugned decision was unlawful. He submitted that ESWADE position is that, the cancellation was lawful, but if the committee finds that it was unlawful, the only avenue available is to look at the remedies, flowing therefore nothing more,” reads part of the IRC ruling.
SP challenged the second impugned decision on the basis that, with arithmetic calculations applied as envisaged in the tender document and the procurement regulations, the tender ought to have been awarded to them and not Knight Piesold Swaziland.
Based on the above, SP prayed for the setting aside of the first and second impugned decisions.
purportedly
On the cancellation decision, SP lamented that it was purportedly taken in terms of clause 27 (2) (f) of the procurement, which allows a procuring entity at any time before awarding a contract to reject all bids and cancel the tender if the tenders or proposals received contain serious interference with normal play of the market.
SP argued before the IRC that the decision to cancel was taken by the chairperson of the tender board yet it should be taken by the entire tender board in terms of Section 27.
It was disclosed that the cancellation was endorsed and approved by the chairperson of the Tender Board on May 8, 2023 and communicated to the bidders the following day. The Tender Board only approved the cancellation in its meeting of May 11, 2023.
SP also argued that it was not open for the chief executive officer to unilaterally take the cancellation decision as it were.
Therefore, the Tender Board’s unilateral decision to cancel the tender was therefore unlawful.
SP further argued that it would be absurd to refer the matter back to ESWADE because they have already shown biasness and irrationality.
The IRC, however, indicated that it was difficult to make a sweeping finding that ESWADE was biased.
Before making a ruling, the IRC noted that even though SP grounds for seeking a termination of the tender process is invariably not the same grounds leading to the procuring entity ESWADE final decision to cancel the tender.
terminated
But both processes had the same net effect to the tender ESWADE/0610 being that, the tender shall terminated.
The IRC also identified some gaps, which also justify that it would have been untidy to proceed with the procurement process on the face of all the defects including those deliberately ignored by the evaluation committee.
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