Africa-Press – Malawi. Controversy continues to haunt this year’s Affordable Inputs Programme (AIP) as 30 companies, whose contracts were cancelled after qualifying to supply 185,700 tonnes of fertiliser, have applied to the courts to bar other entities from supplying the quantity in question.
The application follows the decision by Smallholder Farmers Fertiliser Revolving Fund of Malawi (SFFRFM) to cancel the contracts after the Public Procurement and Disposal of Assets Authority (PPDA) had granted a No Objection for the tenders.
The companies applied to PPDA for a review of SFFRFM’s decision to cancel the contracts. However, PPDA has not acted on the application, prompting the companies to, through Wapona Kita and Company, apply to court for judicial review of PPDA’s failure to act on the companies’ application.
The companies also want interim reliefs because they feel they will suffer irreparable loss at the hands of PPDA and its Director General for breach of their statutory duties, as espoused by their failure to act on the application.
According to the application filed with the High Court in Lilongwe on December 1, 2022, the companies are challenging the decision of the PPDA and its DG, who they accuse of failing to convene an ad-hoc committee meeting of the established Standing Review Committee to decide on the application for review brought to them by the companies, in accordance with Section 60 (3) of the Public Procurement and Disposal of Public Assets Act.
They also want the court to declare that the defendants acted in bad faith and unreasonably in that no reasonable regulatory authority would have failed to convene an ad-hoc committee meeting to review the decision complained against by the claimants. They also want the court to order the two to comply with the law.
”If permission to apply for judicial review is granted, and pursuant to sections 60 (7) and 60 (8) of the PPDA Act, an order of injunction suspending the procurement proceedings of 185,700 tonnes of fertiliser by the Smallholder Farmers Fertiliser Revolving Fund of Malawi, the subject of application for review,[be made],” the application reads.
Court records show that the 30 companies were successful in the award of contracts to supply 185,700 tonnes of fertiliser to SFFRFM under the 2022-23 AIP.
On September 1, 2022, SFFRFM applied to the PPDA for a No Objection to award the contracts and, on October 5, 2022, PPDA granted SFFRFM the No Objection for the delivery of 185,700 tonnes of fertiliser.
Further, on October 25, 2022, SFFRFM published its intention to award contracts to all the 30 companies and others in the newspaper. The companies expected to sign the contracts after the expiry of 14 days of the notice for the intention.
But on November 11, 2022, SFFRFM published a notice of cancellation of procurement proceedings of the 185, 700 tonnes of the fertiliser. According to the documents, the cancellation was made because the total contract value of the number of bids exceeded the budget and, therefore, it was in the public interest that the whole procurement proceedings be cancelled.
However, on November 15, 2022, the companies submitted to the PPDA an application for review of SFFRFM’s decision to cancel procurement proceedings. Kita lawyers wrote PPDA again on November 24, 2022 as a follow-up to the earlier application which was not attended to.
“Our writing to you is to demand that you issue a notice extending the suspension of the procurement of 185,700 tonnes of fertiliser against the Smallholder Farmers Fertiliser Revolving Fund of Malawi. To wit that they will not, during this period, procure the above tonnage from any other supplier until our clients’ application for review herein has been attended to with finality,” reads the letter signed by Wapona Kita.
“Our clients are now believing that you are deliberately sitting on the application for your ulterior motives of satisfying the intentions of SFFRFM in cancelling the procurement proceedings with them and have the same contracts awarded to third parties whose bids were unsuccessful if at all they did bid,” the letter adds.
Kita confirmed yesterday that the application was filed on December 1, 2022. “My clients were left with no remedy,” he said. When contacted by Malawi News, Minister of Agriculture Sam Kawale had this brief response:
“Please take note that no contract was awarded to any of the companies so there is nothing we can do about it. I hope you are able to know the difference between Intention to award a contract and an actual contract, “ he said.
PPDA spokesperson Kettie Kujaliwa defended SFFRFM’s decision, arguing that, according to Section 46 of the PPD Act, a procuring entity may reject all bids at any time prior to the acceptance of a bid without any liability to the bidders.
She further said a procuring entity may cancel procurement proceedings in the public interest without incurring any liability to the bidders. Kujaliwa added that a procuring entity may also terminate a procurement contract for convenience, if it is determined to be in the public interest.
“However, everyone has a right to seek legal redress or remedy when they feel injured. PPDA will let the process run its course,” Kujaliwa said.
This year’s AIP has been marred by controversies. For example, the government was caught pants down as it tried to source fertiliser from a United Kingdom-based company that deals in meat products.
According To the Ministry of Agriculture, beneficiaries under the 2022/2023 AIP have begun redeeming both seeds and fertilisers in 25 districts of the country.
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