- Govt mysteriously abandons costly tender as works near completion
- Contractor sues, wants payment of P80 M despite cancellation
- Tender may have been used to siphon millions from govt-Sources
The Directorate on Corruption and Economic Crime (DCEC) is investigating a case in which the Ministry of Land Management, Water and Sanitation Services mysteriously cancelled a P80 Million tender which was nearing completion.
The Ministry had awarded the tender to a citizen owned company -Batho Pele projects through the Economic Stimulus Program. The tender was for the construction of sewers, roads and infrastructural services for 360 plots in Kazungula Village and at Nnyungwe area in Kasane.
The DCEC investigations come at a time when the government is facing an uncertain future over P80 Million, earmarked to complete the project, following a court bid by the contractor to compel government to settle bills for works done, delay damages and materials on sight as well as outstanding balances. The investigation follows a 16 question report seen by The Botswana Gazette addressed to the DCEC director, Bruno Paledi. The questions raise concerns over the Ministry’s handling of the tender process and its termination.
The dispute alleges that in April 2018 the government wrote to the contractor informing the Contractor Batho Pele that they “wish to terminate the contract and negotiate the final settlement with the contractor.” According to the government notice, “the contract needs to be concluded in accordance with the conditions of the contract.”
The tender documents reveal that the project was supposed to have been completed in September 2018 and that throughout the duration of the contract the parties had been engaged in ongoing disputes, which the applicant, and contractor alleges were part of a plan “to sabotage [his company] and [part of the] back-room corruption by government officials”. The project has been in limbo throughout the disputes and will require an additional input of capital of P80 Million should the contractor succeed in his legal challenge.
The DCEC is said to be investigating why the government ‘s interests were ignored during the conflicts, which exposed government to a high risk of debts, as well as whether there may have been any misappropriation from the public coffers.
The applicant (Batho Pele), in the legal proceedings claim that they performed all their obligations in terms of the contract despite working in a hostile environment due to the lack, for example, of an Environmental Impact Assessment which were never done by the government appointed engineer. This anomaly the company argues was the root cause of the disputes as it insisted that no work could proceed without an EIA, while government saw nothing wrong with the lack of EIA. In his affidavit, Morulaganyi Tshitoeng- the director of Batho Pele says on all the occasions when they presented their applications to the Ministry’s through government’s appointed engineer -Herbco, the engineer acted in hostile manner and high handedness.
“The main dispute between the parties therefore involves delays to the project, which the claimant alleges were solely attributable to the Ministry egregious and repudiate (sic) acts, together with prevention of the applicant’s performance of its contractual obligations,” reads the applicant’s papers.
The 3 member dispute resolution board was appointed by the Ministry at the request of the applicant but failed to sit and adjudicate on the matter. The dispute resolutions board chairman on the 16th November wrote to the applicant-Batho Pele admitting that they have failed to make a resolution on the matter. “It is the view of the DAB that the dispute should be referred to arbitration in terms of clause 20.6 as provided in clause 20.8.” This was after David Glendinning who was appointed by the Ministry resigned over the Ministry’s accusations that the board ‘s impartiality could not be trusted. “In the event that the Ministry does not unreservedly withdraw the accusations, I hereby declare my inability to continue as a member of the dispute resolution board,” reads Glendinning’s letter. Glendinning was appointed by the Ministry.
Michael Watson, a south African based civil engineer by qualification and construction dispute expert, is sought to be confirmed as arbitrator.