In what is becoming a series of appeals, counter-appeals and court injunctions against appealing the matter, the state has submitted a detailed notice of intention to appeal
GAZETTE REPORTER
The state has fired a salvo at the High Court’s decision to award a lucrative multibillion-pula infrastructure tender to Tawana Joint Venture, arguing that the judgment was fundamentally flawed and undermined procurement principles.
Although yet to formally file an appeal, the state has submitted a detailed notice of intention to appeal in which it alleges that the High Court misdirected itself by granting the tender to a bidder that, it says, failed to meet key financial thresholds prescribed in the Invitation to Tender (ITT).
The High Court had ruled in favour of Tawana Joint Venture after the company challenged its disqualification during the evaluation phase by the Public Procurement Tribunal.
Irregularities
The court found irregularities in the adjudication process, including what it deemed misconduct by then-Permanent Secretary in the Ministry of Water and Human Settlements, Dr Kekgonne Baipoledi.
According to Justice Dr Zein Kebonang, Baipoledi had awarded the tender to Chinese companies that did not meet the necessary requirements.
Significantly, Justice Zein Kebonang’s disqualified the state and the Attorney General from seeking redress in the Court of Appeal, citing findings of misconduct.
However, the same court allowed Chinese firms, China Civil Engineering Construction Corporation and Zhong Gan Engineering and Construction Corporation (Botswana) (Pty) Ltd, to appeal.
Overreach
But despite being blocked by the High Court from appealing, the state has notified the parties of its intention to take the matter to the Court of Appeal.
In its filings, the state contends that the High Court overreached by overriding the technical evaluations with its own interpretation, thereby undermining procurement processes designed to ensure transparency and technical fairness.
Specifically, the state contests the court’s interpretation of Clause 3.1.4 of the ITT. The clause stipulates that establishment costs must fall between 15% and 22.5% of the total bid amount, excluding contingencies and escalations.
Engineer’s works
The crux of the state’s argument is that Tawana Joint Venture’s bid fell below the minimum threshold once the costs associated with the Engineer’s Preliminary and General (P&G) works were deducted, dropping to 13.70% with dayworks and 14.07% without.
The court, however, ruled these Engineer’s costs should be excluded from the establishment cost calculation, a decision that the state says lacks both factual and legal grounding.
“There is no factual or legal basis for the finding that the Engineer’s P&Gs must be excluded in calculating the bidder’s establishment cost,” says the state in its appeal papers. “Clause 3.1.4 makes no mention of excluding the Engineer’s P&Gs, only contingencies and escalations.”
All components
Further, the state maintains that under the ITT, the contractor is responsible for all components required to complete the project, including supervision, and cannot separate out engineering supervision costs as external or unrelated.
The state also challenges the court’s assertion that the Public Procurement Tribunal erred in cancelling the tender without such relief being sought by the parties.
According to the state, the cancellation was justified due to the ambiguity of the financial evaluation criteria, as found by both the Evaluation Committee and the Tribunal.
Significant precedent
“There is nothing in the ITT or the law that restricts the Tribunal from cancelling a tender in the absence of a formal application to that effect,” the state asserts.
Legal observers say the impending appeal could set a significant precedent in how courts handle procurement disputes, particularly regarding judicial oversight of technical tender evaluations.
Meanwhile, the Chinese companies who were disqualified are also pursuing their appeal at the Court of Appeal in a bid to overturn Justice Kebonang’s judgment.