Legal Tussle Exposes BHC rot in P30m BDF Tender

Legal documents filed before the Industrial Court reveal how Botswana Housing Corporation (BHC) may have illegally dismissed its Senior Officer – Quantity Surveyor (Head of Section) for questioning what seemed like ‘corrupt practices’ on a Botswana Defence Force (BDF) tender worth around P30 million, write KEABETSWE NEWEL and LAWRENCE SERETSE

As Senior Officer – Quantity Survey (Section Head), Totego Mosiakgabo was responsible for tender adjudication. All Quantity Surveyors reported to him, that is, Mosiakgabo checked and approved their work.

In June 2018, there was a tender adjudication for C 675-33C 96 Men Flats Rakhuna BDF Camp tender, worth around P30 million. According to Mosiakgabo’s statement of case, the adjudication report was prepared by Isaac Baaitse, his junior, who is employed as a Quantity Surveyor by BHC.

Mosiakgabo said Baaitse discussed the report with Batanani Nkhumisang, the Property Development Director, to his exclusion. The report he said, was labeled ‘final report’. The Property Development Director is a member of the Management Tender Committee, which takes the final decision on the award of tenders.

Further, Mosiakgabo said in the morning of the 4th June 2018, the Property Development Director instructed Isaac Baaitse to remove two bidders, Ezra and Bash Carriers from the shortlisted bidders.

It emerges that Baaitse complained to Mosiakgabo as his superior that he was being instructed to flout the BHC Procurement Policy.

Mosiakgabo said he advised Issac Baaitse to comply with the Procurement Policy. Baaitse did not remove the bidders from the shortlist and rather sent the report to the Property Development Director and copied Mosiakgabo, who said he then responded to the email addressing the issue of the instruction to remove the two bidders from the shortlist indicating that it would amount to violation of the Procurement Policy and risked attracting litigation. The Property Development Director is said to have responded saying the matter had been discussed in the morning, in Mosiakgabo’s absence.

The responsibility to prepare the adjudication report was then taken away from Baaitse and given to Tshepo Baruti, a Quantity Surveyor with lesser experience compared to that of Baaitse.

It was then that the Property Development Director instructed Mosiakgabo to present an adjudication report before the Management Tender Committee.

Mosiakgabo said it was the first time that he presented an adjudication report before the Management Tender Committee.

During the Management Tender Committee, Mosiakgabo revealed in a statement that Chief Executive Officer (CEO) Reginald Motswaiso said a Chinese contractor approached him and informed him that he was promised a tender and that it was being taken away. Further, Motswaiso is said to have mentioned that the Chinese contractor informed him that the responsibility of preparing the adjudication report had been taken from the Quantity Surveyor who was charged with preparing the report and given to another Quantity Surveyor, and that there are some invoices which were irregularly paid. How the Chinese contractor got hold of inside information about tenders, remain a mystery.

Only then, that Mosiakgabo learnt that the responsibility of preparing the adjudication report was taken away from Baaitse and given to Baruti and the Managers knew about it. Two weeks later, the Applicant received a letter of suspension. He said the purpose of his suspension was to ensure that he would not be available to raise complaints about the procurement process.

Mosiakgabo was employed at the BHC for 12 years until termination of his contract in December 2018. Even the termination seems to have been unprocedural according to papers filed before court. On the 19th July 2018, by letter dated 19th July 2018, Mosiakgabo was suspended from work on allegations that he was linked to some fraudulent activities going on within the Quantity Surveying Section. Documents reveal that someone named Tatolo, a Senior Security Officer tasked with investigating Mosiakgabo said, in August 2018 that Mosiakgabo did not comply with procedures making payments to a consultant, but did not mention any allegations of fraudulent conduct as alleged in the letter of suspension.

He was accused of initiating payment of over P400 000 to two consultants engaged by BHC, Estcom Holdings and Bats Construction and Engineering. Apparently, BHC does not allow direct payment of consultants, unless the payment is for procurement of materials. Even so, an approval has to be sought.

In their Statement of Defense, BHC said direct payments according to Citizen Empowerment Policy are made only in relation to the procurement of materials.

The suspension was completed and lifted by the Human Resource Manager in September 2018 pending disciplinary hearing. The hearing eventually convened on the 6th November 2018. BHC alleged that direct payments to consultants were prohibited. In the Mosiakgabo’s letter dated 9th October 2018 the he requested for clarification, that is, to be advised of the relevant clause that he was accused of breaching in the Policy. BHC also denied any evidence or documentation like invoices, which the Finance Department used to make the payment, after Mosiakgabo challenged BHC to indicate how the Finance Department was able to process payment without the indicated “evidence” of the two contractors. Further, BHC in its Statement of Defence, said it declined to furnish Mosiakgabo with the investigations report because it was an internal management document.

BHC in their defence said all the information required by Mosiakgabo was not necessary to defend his disciplinary hearing.
The case is ongoing before Justice Christian Diwanga at the Francistown Industrial Court. During a cross-examination in Court last week, Mosiakgabo was represented by Gosego Rockfall Lekgowe and Tlotlo Tlhankane from Rockfall Lekgowe Law Group while Salbany & Torto Attorneys represented BHC. Mosiakgabo dismissed BHC allegations and put it to court that he should be reinstated to his position because he was unfairly dismissed. He insisted that while the corporation claims the payment was unprocedural, such payment can only be done after a written instruction.

After the payments were made, he said in Court that BHC claimed there was no request for those payments from the companies, and that neither were there any invoices.

The BHC investigator who was charged with investigating the allegations testified, when asked why he did not recommend charges against Paar Frank who had approved the payment, said that his assignment was to investigate only Mosiakgabo.
The investigator’s report produced by BHC was signed by another official and not the investigator. When asked under cross examination, he said that he was told that the Human Resources Manager edited his report.