- High Court Halts tenders worth P270m
- Tender documents forged to ‘discredit’ bidder
- BDF’s procurement integrity under scrutiny
Amid allegations of forgery, collusion, procedural misconduct, and other unethical tactics, the High Court has halted two questionable tenders at the Botswana Defence Force (BDF) worth over P270 million. This raises serious concerns about the integrity and professionalism of the army’s procurement processes.
In the latest incident involving questionable tender practices within the Botswana Defence Force (BDF), Net Builders (Pty) Ltd has filed an application with the High Court against the Ministry of Defence and Security, the BDF, and Zebra Construction (Pty) Ltd. The dispute concerns a tender for the “Construction and Completion of Proposed Facilities 333, 562, and 670 for the Botswana Defence Force,” identified as DS/BDF 067/2022-2023, valued at P104 million. Net Builders seeks an interdiction over alleged irregularities in the tender process.
Documents show that Net Builders responded to the BDF bid in 2022, but was informed two years later that its bid was not successful. Upon inquiry, Net Builders established that it was disqualified on the basis that its mobilisation period of 52 weeks was unreasonable.
Net Builders alleges that their bid documents were tampered with, specifically claiming that their original bid included a mobilisation period of two weeks, which was later altered to 52 weeks. They argue that this unauthorised alteration led to their unjust disqualification from the tender process.
So conspicuous was the tempering that the font used to insert the 52 weeks, instead of 2 weeks, was clear and indicated foul play. The two weeks, which is basically 14 days, according to Net Builders, is also reflected in its program of works. The 52 weeks, Net Builders say, turns out to be a mystery.
They promptly filed a complaint with the Permanent Secretary, as required by Section 104(3) of the Public Procurement Act. This section mandates that complaints regarding procurement processes be addressed through a formal review process. Despite this, their complaint was dismissed in April, albeit without a hearing, prompting Net Builders to file an appeal with the Public Procurement Tribunal under Section 109(2) of the Act. This section provides a mechanism for escalating complaints if the initial review by the Permanent Secretary is unsatisfactory.
With the appeal still pending, Net Builders sought an urgent interdict from the High Court to prevent the continuation of the procurement process, arguing that the signing of contracts and commencement of work could result in irreversible harm, especially given the disputed qualifications. The respondents contended that the application was premature, arguing that the applicant had not exhausted all available remedies under the Act. They further claimed that the urgency of the matter was not justified, suggesting that the applicant should have awaited the Tribunal’s decision.
On July 26, 2024, the High Court, under Justice Makhwe, issued a judgment halting the procurement process for a Botswana Defence Force (BDF) tender. This decision follows the principles established in a previous decision by Justice Dr. Kebonang in the Hitecon (Pty) Ltd v Attorney General and Others case, where another BDF tender was similarly halted due to concerns over procedural irregularities. The Hitecon case emphasised the judiciary’s critical role in overseeing public procurement processes to ensure fairness and integrity.
Justice Makhwe, however, drew from Justice Dr. Kebonang’s judgment in the Hitecon case, asserting that “Unlike the High Court, the Tribunal can only have the jurisdiction conferred upon it by statute; it is without any inherent jurisdiction and cannot act outside the confines of its statutory powers.” This highlighted the Tribunal’s limited scope compared to the High Court’s broader authority, particularly in cases involving allegations of procedural misconduct or fraud.
Addressing the issue of urgency, Justice Makhwe determined that the urgency was not self-created by the Applicant. The court recognised that the potential continuation of the procurement process posed a significant risk of irreparable harm, especially if contracts were signed and work commenced based on disputed bid information. The court also referred to the practice directive on public tenders, which underscores the urgent nature of such matters due to their public significance.
The judgment also clarified the interpretation of Sections 104(2) and 109(2) of the Public Procurement Act, noting that while these sections provide a framework for addressing procurement disputes, they do not strictly require the exhaustion of all remedies before seeking judicial relief. The court found that Net Builders had established sufficient grounds for urgency and a prima facie case, justifying the grant of an interdict.
In issuing the interdict, the court effectively paused the BDF tender process, pending a detailed review of the applicant’s allegations. This judgment underscores the judiciary’s vital role in ensuring transparency and fairness in public procurement processes and highlights the necessity for thorough oversight to protect the public interest.
The issuing of this interdict and halting of this P104 million tender comes just weeks after the High Court also took a similar decision in the Hitecon case, raising eyebrows over the integrity of BDF’s procurement processes.
Similar to the Net Builders case, at the heart of the Hitecon tender dispute lies a question of jurisdiction over public procurement laws. The core of the issue was whether the High Court has jurisdiction to review decisions by procurement entities, let alone appeals against their decisions, or whether such jurisdiction is only restricted exclusively to the procurement Tribunal.
The matter involves two Chinese companies squabbling over a tender for the construction of facilities for the military.
In 2023, Hitecon was invited to tender for three projects by the Botswana Defence Force (BDF). Two of which were to be carried out at Thebephatshwa Air Base while the other was in Francistown.
The Invitation to Tender (ITT), which was floated by the BDF, indicated that the tenders would close on the 18th of July 2023 and required bidders to attend a compulsory pre-tender meeting at Thebephatshwa on the 4th of July 2023.
The ITT also indicated that the tender documents could be collected from the BDF barracks in Mogoditshane starting on 26th June 2023. Additionally, queries or clarifications should be submitted to the procuring entity no later than seven working days before the tender’s closing date.
It appears that Hitecon responded to the tender and attended the compulsory pre-meeting at Thebephatshwa while another Chinese company, Zhong Gan Engineering, did so at a later stage.
The site visit attendance register indicates that the compulsory meeting was attended by 21 companies.
According to the High Court judgment by Justice Zein Kebonang, Zhong Gan Engineering says it received a notice to tender on the 5th of July and purchased the tender documents the following day. On that day it also attended a compulsory pre-tender meeting at the BDF Barracks in Donga, Francistown. It was at this meeting that Zhong Gan Engineering discovered that there had been another compulsory meeting pre-tender meeting in respect of the Thebephatshwa Air Base tenders at Thebephatshwa on the 4th of July 2023.
Court documents show that although the date for the compulsory pre-tender meeting was stated in the tender document, Zhong Gan Engineering did not attend the meeting in Thebephatshwa.
On the 10th of July 2023, Zhong Gan Engineering wrote to the BDF to inquire among other things whether (a) it could tender for the Thebephatshwa Projects notwithstanding having not attended the compulsory pre-tender meeting of the 4th of July 2023 and whether the bid timelines could be atleast extended by two weeks for it to provide a more favourable proposal.
Things took an interesting twist after an undated addendum addressed to no particular emerges. Court documents show that the addendum was issued by the Director of Procurement Oversight at the Ministry of Defence and Security, extending the closing date from the 18th of July 2023 to the 1st of August 2023 and setting a compulsory pre-tender meeting for the 20th July 2023, notwithstanding that this meeting had already happened.
According to the judgment, on the 2nd of May 2024, Zhong Gan Engineering was awarded the disputed Thebephatshwa project at the value of P169 513 412. Hitecon’s bid for the same project was P101 735 174.85 with a completion duration of 10 months, court documents show.
Following its disqualification on the 19th of March 2024, Hitecon filed a complaint with the Accounting Officer as required by the Public Procurement Act.
Just like in the Net Builders case, Hitecon’s complaint remained unanswered until the 11th of April 2024, when its disqualification was confirmed on the basis that it had not provided a list of local sub-contractors in its bid documents as required by the ITT.
In the dismissal letter, court documents say the Permanent Secretary in the Ministry of Defence and Security, Pearl Ramokoka, in her capacity as the Accounting Officer, wrongly stated that Zhong Gan Engineering had attended the 4th July 2023 compulsory pre-tender meeting and Thebephatshwa, when that was incorrect.
Although the letter from the PS appears to have been written on the 11th of April 2024, Hitecon says it only became aware of it on the 2nd of May 2024.
Immediately upon learning that the disputed tender had been awarded to Zhong Gan Engineering, Hitecon filed an urgent court application on the 10th of May 2024.
The arguments of the Ministry of Defense and Security and the BDF were similar to that of the Net Builders case, where they questioned the jurisdiction of the High Court, stating that complainants should first exhaust internal processes as per the Public Procurement Act, before jumping to the High Court.
As a result, Justice Kebonang, who held the matter ruled that the Public Procurement Act does not oust the jurisdiction of the High Court to hear procurement-related disputes. His ruling inspired Justice Makhwe in the Net Builders case.
“A party has an option, once it has filed a complaint with the accounting officer to either approach the Procurement Tribunal or the High Court for determination of any procurement-related dispute,” Justice Kebonang said in the judgment.
He added that the only local remedy that must be exhausted as a pre-requisite to approaching the Tribunal of the High Court is filing a complaint with the Accounting Officer.
While the two similar cases raise questions over the seemingly dubious procurement processes at the BDF, the two judgments by these two different judges also cement a point that indeed, the BDF procurement systems are questionable.
