Siteki Town, Icon win road tender dispute
MBABANE – An application by a bidder styled Boab Investments ( Pty) Ltd challenging a road tender issued by the Siteki Town Council has been dismissed by ESPPRA’s Independent Review Committee.
The Procurement Act No. 7 of 2011 established the Eswatini Public Procurement Regulatory Agency ( ESPPRA) as an independent regulatory body. The Act empowers the ESPPRA with responsibility for policy formulation, regulation, oversight, capacity building and professional development, information management and dissemination in the field of public procurement in the Kingdom of Eswatini.
Decision
A decision has since been reached in the matter heard at the ESPPRA Conference Room in Mbabane on June 25 this year. The recent unrest witnessed in the country over two weeks ago is said to have delayed the release of the verdict. Boab Investments ( Pty) Ltd ( applicant) was challenging Siteki Town Council’s notice of intention to award Icon Construction ( Pty) LTD a tender for the upgrading of First Avenue Road ( 120 metres), Bellmouth Intersection to Siteki Civic Centre and Town Hall.
Siteki Town was cited as a respondent ( first) alongside Icon Construction ( second) in the matter.
The applicant sought to review, correct/ set aside the intention to award by the procuring entity ( Siteki Town) in favour of Icon. Boab was further praying for an order to substitute Icon.
In t he grounds for administrative review, the applicant had claimed that it was the only company which fully complied with the stated prequalification requirements. The latter argued that despite having submitted everything required as per the checklist, the notice of intention to award the tender was issued in favour of the second respondent, claiming that Icon at the time of tender opening did not allegedly meet the tender prequalification requirements.
The applicant felt t he decision t o a ward t he s e c ond r e s pondent was reached capriciously and mala fide ( in bad faith) on the basis that Icon reportedly did not provide the Value Added Tax ( VAT) Certificate and the declaration of non- insolvency. As a result, the applicant felt the Tender Board acted grossly unreasonable in a manner that calls for the intervention of the committee.
The council, on the other hand, had contended that the checklist was never intended to be a legal part of the tender evaluation process. It further argued that the question of a solvency test was covered under Form 7 of the tender document, as such Section 40 ( 1) ( b) and ( c) was complied with.
All bidders were said to have responded to Form 7 and they submitted their audited financial statements as proof of their solvency.
Active
The second respondent was reportedly present in all sittings of the matter, but it did not play any active role. They did not file any papers for consideration by the review committee.
In analysis of the presentations by the parties, the review committee highlighted that the checklist was a tender opening schedule which confirms documents presented by bidders. According to the committee, the checklist’s importance starts and ends at the tender opening.
“For this reason, it is not germane for the evaluation. In short, it is a schedule to record the tenders received in terms of Regulation 75 ( 8) of the Public Procurement Regulations of 2016,” said the committee.
The tender document is said to be the primary document that all bidders must focus on. It is the legal document that all bidders must comply with. The tender document sets out the entire criteria as to what the procuring entity was looking for from bidders.
“It appears to us that the only notable discrepancy is that the tender opening schedule indicated that a VAT Registration Certificate and declaration of non- insolvency was needed.
“It would appear, therefore, that there was nothing wrong with the second respondent confining itself with what was required by the tender document,” ruled the review committee.
A public entity can make i t s own requirements for eligibility of bidders in any other form so long as such requirements are in line with Section 40 of the Public Procurement Act of 2011 and the Regulations.
It was highlighted that the applicant misdirected itself in thinking that the tender opening schedule had any legal effect in the evaluation process.
On the applicant’s plea to substitute Icon, the committee said granting the prayer of t he application would i n essence mean ordering the procuring entity to contract with the applicant.
“The Independent Review Committee has no jurisdiction to bring a contract into force. As a creature of statute, the committee cannot grant remedies beyond its scope of jurisdiction,” ordered the review committee.
The application was dismissed in its entirety.