Driv­ers’ Drive li­censes saga lands in court

Lesotho Times - - Front Page - Lekhetho Nt­sukun­yane

A LO­CAL com­pany that ten­dered to print driver’s li­censes has filed an ur­gent ap­pli­ca­tion in the Com­mer­cial Court seek­ing to block the Min­istry of Pub­lic Works and Trans­port from award­ing the ten­der to South African com­pany, Mu­voni Bio­met­rics and Smart Card So­lu­tions.

The com­pany, Q7 (Pty) Ltd, ar­gues through its lawyers, K. Nde­bele Cham­bers, it is un­law­ful for the min­istry to award the ten­der to Mu­voni as it did not bid for the project in the first place.

In the ap­pli­ca­tion filed be­fore Jus­tice Lisebo Chaka-makhooane on Mon­day this week, Ad­vo­cate Tembo Le­supi of K. Nde­bele Cham­bers, notes Q7 had ten­dered for the project but dis­cov­ered through a news­pa­per ar­ti­cle the ten­der had been awarded to Mu­voni.

The min­istry’s Prin­ci­pal Sec­re­tary (PS) Ma­jakathata Mokoena-thakhisi, the Min­istry of Pub­lic Works and Trans­port, its pro­cure­ment unit, the Pro­cure­ment Pol­icy and Ad­vice Di­vi­sion, At­tor­ney-gen­eral Tšokolo Makhethe and Mu­voni are cited as first to sixth re­spon­dents re­spec­tively in the mat­ter.

In the ap­pli­ca­tion, Q7 wants the court to is­sue a di­rec­tive for the re­spon­dents to show cause why the PS, min­istry and its pro­cure­ment unit should not be or­dered to dis­patch a record of the pro­ceed­ings of the ten­der panel and the de­ci­sion made to award the ten­der to Mu­voni.

The firm also seeks an or­der in­ter­dict­ing Mr Mokoena-thakhisi from en­ter­ing into a con­tract with the Mu­voni.

The re­spon­dents, Ad­vo­cate Le­supi notes, should re­spond within a pe­riod to be de­ter­mined by the court.

For sub­stan­tive re­lief, Q7 also wants the court to “re­view, set aside and de­clare null and void the de­ci­sion of the first, sec­ond and third re­spon­dents to award the ten­der to for the pro­duc­tion of driv­ers’ li­censes to the sixth re­spon­dent.”

The com­pany also wants the court to or­der the PS to start the ten­der process all over again.

Ev­i­dence led in court shows on 28 April 2016, the min­istry pub­lished an in­vi­ta­tion to in­ter­ested com­pa­nies to ten­der for pro­duc­tion of driv­ers’ li­censes. Q7 was among the com­pa­nies that showed their in­ter­est by sub­mit­ting their ten­der doc­u­ments as per the ten­der no­tice.

Ad­vo­cate Le­supi notes his client can “pos­i­tively af­firm” Mu­voni was not among the com­pa­nies that sub­mit­ted bids.

He said they dis­cov­ered on 22 July 2016 from a news­pa­per pub­li­ca­tion that the Min­istry of Pub­lic Works and Trans­port had made a de­ci­sion to award the con­tract to Mu­voni.

“On the ba­sis of the said pub­li­ca­tion, the ap­pli­cant in­structed its le­gal rep­re­sen­ta­tives to write a letter to the Min­istry of Pub­lic Works and Trans­port chal­leng­ing the grant­ing of the said ten­der to the sixth re­spon­dent with­out fol­low­ing any ten­der process as en­vis­aged by the Pro­cure­ment Reg­u­la­tions of 2007,” the lawyer says.

“To date, nei­ther the min­istry nor the first re­spon­dent has re­sponded to the said letter. In­stead, the first re­spon­dent gave an in­ter­view to one lo­cal news­pa­per, in the said news­pa­per ar­ti­cle, the first re­spon­dent in­di­cated that rep­re­sen­ta­tives of the sixth re­spon­dent held meet­ings with the Min­is­ter of Pub­lic Works and Trans­port, but stated that the said meet­ings did not re­sult in the sign­ing of the con­tract.”

Ad­vo­cate Le­supi adds: “We have, how­ever, come to know from peo­ple within the pro­cure­ment unit at the Min­istry of Pub­lic Works and Trans­port that in­deed the min­istry and par­tic­u­larly the first re­spon­dent is on the verge of sign­ing the ten­der con­tract with the sixth re­spon­dent. This fact alone ren­ders the ap­pli­ca­tion ur­gent.

“I fur­ther ver­ily aver that the aver­ment by the first re­spon­dent to the ef­fect that the min­is­ter is al­ready hold­ing meet­ings with the sixth re­spon­dent is enough to have the ap­pli­cant com­pany ap­pre­hen­sive that in­deed the min­is­ter is will­ing to have the con­tract awarded to sixth re­spon­dent with­out any due process.”

He ar­gues Mu­voni’s se­lec­tion was il­le­gal by virtue of not bid­ding for the ten­der.

“Ap­pli­cant con­tends that the sixth re­spon­dent has not bid to pro­duce li­censes for the gov­ern­ment of Le­sotho as was ad­ver­tised. It is there­fore un­law­ful that a com­pany that falls out­side the pro­cure­ment of ten­der process could be con­sid­ered for a project that it did not even ten­der for,” says Ad­vo­cate Le­supi.

“Ap­pli­cant“Ap sub­mits this ground alone is enoughenou to ren­der the pro­cure­ment process that re­sulted in the award of the con­tract Mu­voniMuvo un­law­ful and sus­cep­ti­ble to be­ing re­viewe­drevie and set aside.”

TheTh so­lic­i­tor ar­gues pro­cure­ment reg­u­la­tions were clear and un­am­bigu­ous.

“. . . once the rel­e­vant ten­der panel has is­suedis­sue an ad­ver­tise­ment, in­ter­ested par­ties have to re­act to the ad­ver­tise­ment, and only those com­pa­nies that have re­acted to the ad­ver­tise­men­tad­ver shall be con­sid­ered for the project,”proje he says. “Fur­ther,“Fu ap­pli­cant con­tents that the de­ci­sion of the first, sec­ond and third re­spon­dents to award the con­tract to the sixth re­spon­dent is un­rea­son­able, this is be­cause the ap­pli­cant has learned that the sixth re­spon­dent is go­ing to per­form the said task for a re­ported fee to the gov­ern­ment of Le­sotho for an es­ti­mated fig­ure at about M9 mil­lion.”

Ad­vo­cate Le­supi con­tin­ues: “This fig­ure is dou­ble the quo­ta­tion that was pro­posed by the ap­pli­cant com­pany to do the same project. It is ap­pli­cant’s con­tes­ta­tion that it is ir­ra­tional for the re­spon­dents to elect to bur­den the pub­lic purse with such an un­rea­son­ably high costs. “But if this as­ser­tion turns out to be un­true, then the re­spon­dents will be or­dered to dis­patch the record of the sit­tings of ten­der panel to dis­pute this al­le­ga­tion.”

Mean­while, Ad­vo­cate Le­supi told the Le­sotho Times yes­ter­day the re­spon­dents were ex­pected to file their op­pos­ing af­fi­davit to­day.

“We are also ex­pected to meet be­fore Jus­tice Chaka-makhooane to ar­gue over is­sues per­tain­ing to ur­gency and in­ter­dic­tion pend­ing fi­nal­i­sa­tion of the mat­ter to­mor­row (to­day),” he said.

Ef­forts to con­tact the re­spon­dents’ lawyers proved fruit­less un­til the time of go­ing to print last night.

Min­istry of Pub­lic Works and trans­port Ps Ma­jakathata Mokoena-thakhisi.

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