Agric min­istry in M57m ten­der storm

Lesotho Times - - Front Page - ’Marafaele Mohloboli

A COM­PANY that was dis­qual­i­fied in a multi-mil­lion maloti ten­der for the sup­ply of fer­til­izer has chal­lenged the de­ci­sion and ac­cused the Min­istry of Agri­cul­ture’s Pro­cure­ment Pol­icy and Ad­vice Di­vi­sion of flout­ing pro­cure­ment pro­ce­dures.

The com­pany, Hippo Trans­port Pty (Ltd), ten­dered for the sup­ply of fer­til­izer in the es­ti­mated M57 mil­lion deal, along with Al­pha Agro Chem and Kynoch.

How­ever, dur­ing the open­ing of the bids on 7 July 2016, it was dis­cov­ered Hippo Trans­port’s trader’s li­cence was not valid re­sult­ing in an au­to­matic dis­qual­i­fi­ca­tion leav­ing the other two firms.

Hippo Trans­port Pty (Ltd) has since ap­pealed the dis­qual­i­fi­ca­tion, ar­gu­ing the de­ci­sion was un­pro­ce­du­ral and that its com­peti­tors also flouted pro­cure­ment guide­lines.

Through the com­pany’s lawyers, Phoofolo As­so­ci­ates, the com­pany wrote a letter ad­dressed to the Pro­cure­ment Pol­icy and Ad­vice Di­vi­sion ob­ject­ing to the dis­qual­i­fi­ca­tion.

Part of the letter, dated 1 Au­gust 2016, reads: “Your good of­fice shall fur­ther re­al­ize that the said de­ci­sion in terms of Reg­u­la­tion 54 (1) read with Reg­u­la­tion 3 must be made by a body re­ferred to as the pro­cure­ment unit and not an in­di­vid­ual whose ca­pac­ity is that of a se­nior pro­cure­ment of­fi­cer as is the case with ref­er­ence to the said letter and or de­ci­sion.

“This view we hold be­cause the letter and/ or de­ci­sion does not out­line the ca­pac­ity of the au­thor and whether the rel­e­vant per­son has been duly au­tho­rized by the rel­e­vant body.

“We take strong ex­cep­tion to the said de­ci­sion on the grounds that it is ir­reg­u­lar on the score and does not qual­ify as a de­ci­sion con­tem­plated un­der Reg­u­la­tion 54 (1) which pro­vides that the de­ci­sion must be made by the pro­cure­ment unit, not a se­nior of­fi­cer.”

In their grounds of ap­peal, the lawyers ar­gue the de­ci­sion that their com­plaint was pre­ma­turely lodged and that it ought to have been lodged only af­ter the award of the con­tract was “flawed”.

“This is more so in light of the fact that there are com­plaints which pre­cede the sign­ing of the con­tract and it can­not be the proper con­struc­tion of the leg­isla­tive frame­work that the com­plaint can only be lodged af­ter the sign­ing of the con­tract,” the so­lic- itors ar­gue.

“The dis­qual­i­fi­ca­tion of client in the ten­der does not emas­cu­late him of the right to com­plain about his com­peti­tors who were non-com­pli­ant with the pro­ce­dural guide­lines to a fair com­pet­i­tive ten­der as pre­scribed in Reg­u­la­tion 14 (1).”

The lawyers also assert Hippo Trans­port Pty (Ltd) was within its rights to lodge a com­plaint even if it was dis­qual­i­fied.

“The de­ci­sion that client is dis­qual­i­fied from lodg­ing a com­plaint due to its non-com­pli­ance with the law dur­ing the ten­der open­ing is evenly flawed and taken is­sue with.

“Ten­derer within the con­text of the Reg­u­la­tions is not re­stricted to ‘suc­cess­ful ten­der­ers’ only,” state the lawyers, adding the unit did not is­sue the de­ci­sion within spec­i­fied time as spec­i­fied by the law.

Con­tacted for com­ment on the ap­peal, Kynoch agent Buti Nkhabut­lane, said: “I re­ceived a letter from the Min­istry of Agri­cul­ture no­ti­fy­ing us of a com­plaint and invit­ing us to the pro­ceed­ings on a venue and date yet to be an­nounced.”

He said he was not ready to say any­thing more as “we are still wait­ing for fur­ther de­tails”.

The min­istry’s Se­nior Pro­cure­ment Of­fi­cer, ’Man­tšebo Ntaote, also told the Le­sotho Times they were not aware of the date and venue fixed for the pro­ceed­ings as they were await­ing cor­re­spon­dence from the Min­is­ter of Fi­nance.

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