- Reversal of a tender award to rectify an oversight lies at the heart of the matter
A controversial Botswana Examinations Council (BEC) tender that was allegedly awarded to a less preferred bidder has been interdicted in court.
This was after Zebra Shipping (Pty) Ltd brought an urgent court challenge to the awarding of the tender to a youth-owned company called Clearstory. In his order, Justice Omphemetse Motumise of Gaborone High Court interdicted BEC and restrained it from concluding a contract with Clearstory for provision of customs clearing and forwarding services for three-years from 2022 to 2024 under Tender No. BEC CS 011/21-22.
This interdiction will be in force pending a review application to be launched by Zebra Shipping against reversal of the tender award and determination and conclusion of the anticipated review proceedings. The judge also stopped BEC or any of its agents and/or functionaries and/or officers from interfering and/or in any way tempering with the results of the evaluation and adjudication of Tender No. BEC CS 011/21-22 in which Zebra Shipping and the second respondent were the only bidders.
The order also directed that Zebra Shipping “will be at liberty to institute review proceedings against the first respondent (BEC) in which it altered the results of the tender in terms of which applicant was the preferred bidder with the result that the second respondent has become the preferred bidder of the tender aforesaid.” Chronicling events that led to the latest interdiction, court documents show that Zebra Shipping and Clearstory submitted their bids in response to BEC’s Invitation To Tender. Following evaluation by the Evaluation Committee and approval by the Ministerial Tender Committee, Zebra Shipping was declared the preferred bidder and notified by BEC at a virtual debriefing meeting on 24 May 2022 and by letter.
At a virtual debriefing between BEC and Clearstory held on 24 May 2022, Clearstory inquired whether a 15 percent price preference had been applied to its bid since it was a youth company. The response was that it had been done but the chairperson of the meeting undertook to check after the meeting if that was in fact the case. Clearstory followed up its enquiry by letter dated 25 May 2022. A response to that letter by the first respondent dated 31 May 2022 was that the issue would be presented to the MTC. The MTC undertook investigations which confirmed Clearstory as a youth company that had submitted the relevant certificate in proof of its status and was entitled to the 15 percent price preference. It was also confirmed that the 15 percent price preference had not been applied to its financial score.
To rectify this, the MTC directed the Evaluation Committee to reevaluate the financial proposal of the second respondent, this time applying the 15 percent price preference. According to Zebra Shipping, the result was that the Clearstory emerged the best evaluated bidder and was announced as such to the applicant and the second on 2 June 2022. In the debriefing that followed, Zebra Shipping protested the reversal of its preferred bidder status but BEC’s position remained fixed on the position that Clearstory was the winner of the tender.
Aggrieved by that decision, Zebra Shipping challenged the decision of the BEC and MTC. In its papers, Zebra Shipping argued that BEC has made two decisions, the one awarding the tender to it and the other to Clearstory. Zebra Shipping contends that the second decision is unlawful and that this is the decision which should be reviewed and corrected. For now, its implementation must be interdicted.
On the interdict, Zebra Shipping points to its “more than prima facie right” in having been awarded the tender after achieving the highest score for both the technical and financial evaluations. It is such right which it says it seeks to protect. According to papers before court, BEC and Clearstory acknowledge the mistake of not applying the 15 percent price preference to Clearstory’s financial score but allege that the error could be corrected by simply going back to reevaluate the financial score.
Justice Motumise found that although BEC and Clearstory “assert that the recalculation favoured the second respondent, no such marks were disclosed to this court”. In its reply Zebra Shipping has sought to demonstrate that even after applying the 15 percent price preference, the second respondent would not have emerged the best evaluated bidder. Clearstory objected to these calculations from the bar, claiming that Zebra Shipping was making a new case in its replying affidavit. Court papers show that Justice Motumise “overruled the objection for two reasons”.
“First of all, the case that the application of the 15 percent price preference made the second respondent the best preferred bidder was made by the respondents in their answering affidavits without backing up that averment with the actual calculations,” said the judge. He added that Zebra Shipping was entitled, in reply, to deal with that case, and if need be, to show that the position advanced by BEC and Clearstory was not maintainable. “Secondly, if there was a serious objection at all, notice of it would have been given and an application made to expunge the relevant paragraphs if they were offensive by introducing new evidence in a replying affidavit,” Justice Motumise said.