- Tells PAC that he long advised of “illegal “appointment of project manager
- Minutes show interests were declared and waivered
Businessman Nicholas Zackhem has dismissed allegations stating that he convinced Permanent Secretary in the Ministry of Transport and Communication, Kabelo Ebineng to terminate the contract of the Project Manager/ Engineer engaged in the construction of the Charles Hill- Ncojane road.
Zackhem’s company, Zac Construction was awarded the Charles Hill- Ncojane road project in 2015 at a value of P437 million. Bathakga Burrow Botswana (BBB) were also appointed as Project Manager/Engineer.
However, it would soon emerge that the Project Manager in BBB was one of the companies that bid and lost the road construction tender during deliberations by the Parliamentary Committee on Works, Transport and Telecommunications late last year. The Ministry of Transport would later terminate the BBB contract after noting the deteriorating relationship between the two contractors.
BBB directors have since taken the matter before the courts of law to argue what they deem an unlawful termination of their contract. They have also made accusations that Ebineng was heavily influenced by his relationship with Zackhem in terminating the contract. This publication also understands that Ebineng openly declared his relationship with Zackhem in one of the meetings with the two contractors.
Nonetheless, according to submission made by Zac Construction at the Parliamentary Committee on Works, Transport and Telecommunications on 15th November 2017, he records that soon after the awarding of the tender, they requested for the Terms of Reference (TOR) in appointing the Project Manager/Engineer only to be turned down by the Roads Department (RD).
“We requested procedurally for the Terms of Reference (TOR) of both consultants, ‘Engineer/Project Manger’ and the EIA Consultant at the commissioning meeting as ZAC was to closely liaise with both consultants during the tenure of the project. We were denied the TOR despite several written requests, until it was bluntly refused by the client, Roads Department (RD) and BBB,” states Zac Construction.
Zackhem argued that “We were bewildered more so that in spite of highlighting the necessity for transparency especially on a public project as required by the Government Policies such a stand by RD and BBB was not acceptable under common law…such documents are subject to discovery in litigation,” he further revealed.
The submissions state that this forced Zac Construction to carry out their own investigation that would later bring to light issues of conflicting interest between BBB and Roads Department.
“Clause 220.127.116.11 of the General Conditions and the relevant particular application in the ITT, require that the Engineer shall be named in the Appendix to the Tender and change thereof shall require the approval of the Contractor. Bathakga Burrow was not stated in the Appendix to Tender let alone their Terms of Reference entailing roles and responsibilities being kept confidential to the contractor,” reads the records from the Parliamentary Committee hearing.
“Furthermore, Bothakga Burrow with China State and Zac Construction with Bergstan tendered for the same project and both submissions were rated technically satisfying. Hence their financial proposals were opened. Zac Construction emerged successful. However, we were flabbergasted to see the losing contender was brought in to supervise the successful tenderer which resulted in the malicious, unfair and non-transparent conduct by the Engineer/Project Manager leading to several disputes. Such appointment was done in a non-transparent manner and against the norm of good governance.”
Zac further complained that there were numerous instances of malice and acting beyond authority during the construction period, which saw the project halt.
Records reveal that on 31st October 2017, the Ministry of Transport and Communications acknowledged Zackehm’s complaints and intentions to rectify the situation.
Records further show that on 10th December 2017, the ministry informed Zac Construction that they had advised the Public Procurement and Asset Disposal Board (PPADB) to terminate the BBB contract with immediate effect on grounds of conflict of interest, and also that the consultant (BBB) acted beyond their powers during the tenure of the project.
This publication also saw minutes in which all the contracting parties were asked to declare their interests. The Permanent Secretary did acknowledge that Zackhem and himself had at some point borrowed each other money, while directors of BBB also acknowledged their personal and professional relationships with both Zackhem and the permanent secretary.
“I find it absurd that there is selective dissemination of facts about our relationships, they also declared that they have business relationships with the PS and when all was laid bare a consensus was reached for our project meeting and tender roll out to proceed. They are trying to use my name to hide a fraudulent tender awarding,” Zakhem alleged.
The contract was terminated earlier this year. Judgement in the case in which BBB argue the ‘unlawful’ termination of their contract has been reserved for 24th May 2018 by Gaborone High Court Judge Terrence Rannowane.