Times of Eswatini

FIFA’s E100m tenders clash

- BY MFANUKHONA NKAMBULE mfanukhona@times.co.sz

µµ Investigat­ions revealed that EFA is in a dilemma with regard to full compliance with the country’s legislatio­n because the FIFA Goal Projects are governed by Swiss law.

MBABANE – Most of the FIFA financed projects amounting to over E million, being undertaken in the country, raise more legal questions than answers. 7his is due to the fact that Federation of Internatio­nal Football Associatio­n (FIFA) awards the tenders for the con struction of turf football fields, particu larly, to foreign based companies. It is said that local companies do not have the expertise to set up the artificial turfs.

:hen engaging local companies to build dressing rooms, grandstand­s, toilets and other facilities apart from the turf football fields, the project committee under the Eswatini Football Associatio­n (EFA) has been, in most cases, preferring the selective tendering process to the open procuremen­t system.

It has been establishe­d that the open tendering allows for a more competitiv­e bidding process, which can result in lower prices for the project.

Secondly, it can help to ensure that the best possible contractor is selected for the job. 7hirdly, open tendering can provide greater transparen­cy and accountabi­lity throughout the contractin­g process.

7he open tendering system is also the preferred procuremen­t method in terms of the country’s 3ublic 3rocure ment Act.

7he local committee overseeing the FIFA *oal 3rojects under the chairman ship of 1icodemus µAce’ Mashwama, said the main contractor during construc tion were foreign companies known as FIFA preferred producers.

However, the Constructi­on Industry Council (CIC) said its register showed that local companies were the main contractor­s.

Apparently, investigat­ions revealed that EFA is in a dilemma with regard to full compliance with the country’s leg islation because the FIFA *oal 3rojects are governed by Swiss law. 7he Court of Arbitratio­n for Sports uses Swiss law.

7herefore, using the country’s laws to tackle a FIFA issue may be cumber some as the associatio­n may decide to withdraw its aid.

In the same vein, FIFA then uses such prerogativ­e under Swiss law to award the tenders without seeking approval from the country’s CIC.

PREROGATIV­E

It must be mentioned though that the internatio­nal football mother body’s prerogativ­e calls into question Section

and of the Constructi­on Industry Council Act.

Section ( ) of the Act reads ³A person shall not award a contract for constructi­on works to a foreign company or foreign firm without the approval of the council.´

Section ( ) provides that where an award for a contract is referred to council for approval and it determines that the constructi­on work to be awarded can be undertaken by an Eswatini company or a Swazi firm, the entity (council) shall not endorse its approval. If that is the case, the person shall not award the contract to the foreign company or foreign firm.

On the other hand, Section ( ) provides that a person shall not award a contract for any constructi­on works to a foreign company or foreign firm unless the foreign company or foreign firm un dertakes the constructi­on in partnershi­p or jointly with a company from Eswatini.

Mashwama, who chairs the project committee, told 7imes S81'A< that foreign companies, as engaged by FIFA, were actually the main contractor­s.

³7he foreign companies are called FIFA preferred producers,´ he said.

For instance, he said a company from the 1etherland­s set up the turf football field at Mkhuzweni, where a technical centre was under constructi­on.

He said there was one Eswatini com pany which set up a turf football field in contravent­ion of FIFA standards. 7his did not go down well with soccer’s world governing body.

7he former Mbabane Highlander­s and Sihlangu striker said most of the artifi cial turfs were set up by foreign entities engaged by the internatio­nal football associatio­n.

He mentioned that prequalifi­cation for tendering was not done at the EFA as some people might assume.

³:e are not involved,´ he said.

TENDERING

He pointed out that the bids were also done by FIFA. Asked why they preferred the selective tendering during engagement of local companies to do earth work, build toilets, dressing rooms and other facilities, Mashwama said they did not have sufficient capacity to handle lots of potential bids.

He said they hired a consultant to look for suitable contractor­s that could provide quality service to the nation. He said the selective tendering was a legal procuremen­t method.

It has been establishe­d that Mashwa ma’s committee takes a shortlist of three local companies to the EFA to select the best bidder for the constructi­on of other facilities apart from the artificial turf. He said another assignment they carried out as the recipient was to provide security on project site, receive and facilitate entry of imported building material.

Frederick Mngomezulu, the Chief Executive Officer (CEO) of EFA, said it was true that all the processes were handled by FIFA. He said they followed the country’s procuremen­t laws when projects were financed by EFA.

However, he said they had no control over FIFA money.

³:e have no choice but to abide by FIFA because the projects are not fi nanced with donor funds. 7his is money for FIFA, which channels it directly to the project,´ Mngomezulu explained.

Maqhawe Mnisi, the Chief Executive Officer (CEO) of the CIC said the public enterprise was aware that there were artificial football turfs projects that had been undertaken.

Mnisi said these projects were regis tered with council by local contractor­s

as the main contractor­s.

He said they were registered with the council by local contractor­s as main contractor­s in the projects. The &E2 explained that the &I& Act provided for instances, where joint partnershi­ps with foreign company were imminent.

He said it was upon the procuring entities involved in the projects to ensure that where foreign contractor­s were engaged, the entities should align with 6ections 40 and 41 of the &I& Act.

0nisi assured them that the council would engage the relevant stakeholde­rs in these projects to ensure full compliance with the &I& Act.

UNDERTAKEN

He revealed that the 0khu]weni Technical &entre was undertaken by Hancy &onstructio­n as the main contractor, while .a/anga Technical &entre was done by Homeboy] &onstructio­n. He said the /obamba Technical &entre was done by &onstructio­n Associates and .ing 6obhu]a II 0emorial 6tadium was done by a joint venture between .apson and Greenfield­s.

He said the &I& Act stipulates measures to be taken in instances where non-compliance has been found.

5eacting to a Tuestion on the 6wiss law, which governs the projects, 0nisi insisted that the law reTuired that any person intending to award works to a foreign company or firm should first seek approval with the council.

³5egarding the above, the council would need to engage the relevant parties to deal with the matter in its entirety,´ the &I& &E2 said.

According to the FIFA rules on the projects, the member associatio­ns submit a completed applicatio­n form with all the reTuired informatio­n and listed supporting documents, which may vary depending on the type of project.

It is stated that the FIFA general secretaria­t is entitled to reTuest additional informatio­n or documents for any project applicatio­n at any time.

The project must contribute to the achievemen­t of the specific objective(s) of the member associatio­n concerned as establishe­d in the finalised contract of agreed objectives.

In addition, the purpose of the project applicatio­n, and the correspond­ing amount of the project funds being reTuested, must already be approved by the executive committee of the member associatio­n concerned.

6uch approval must be noted in the relevant meeting minutes and shall be provided to the FIFA general secretaria­t as part of the supporting documents with each project applicatio­n.

It is stated that such approval shall also be communicat­ed to the congress or general assembly of the member associatio­n concerned at the earliest opportunit­y to do so. The proof of such communicat­ion (such as meeting minutes or any form of official correspond­ence) shall also be provided by the member associatio­n to the FIFA general secretaria­t by a mutually agreed date.

:here a member associatio­n uses funds allocated for specific projects to improve or build new football infrastruc­ture for its direct benefit or for the benefit of another entity (e.g. regional associatio­ns or clubs), the member associatio­n shall also provide, as part of the supporting documents, the FIFA general secretaria­t with the relevant national land registry certificat­e.

AGREEMENTS

This may also include extract confirming that the member associatio­n or the other entity is the owner of the land or the agreements confirming the donation, transfer or other form of provision to, or use of land by, the member associatio­n.

:here applicable, the project shall be implemente­d by the member associatio­n with the assistance of any other relevant parties (such as companies, manufactur­ers, contractor­s, suppliers and consultant­s).

The FIFA general secretaria­t shall take the necessary measures to release the reTuired funds directly to the member associatio­n in accordance with the defined financial conditions.

In the event that the contracts with the parties concerned are signed directly by FIFA (e.g. for a project for an artificial turf pitch), the internatio­nal football associatio­n says it would do the following

FIFA shall sign a declaratio­n with

the parties concerned, stipulatin­g that they undertake to indemnify FIFA and to hold FIFA harmless from any complaints, claims, demands for damages and interest or liability related to the implementa­tion of the project

FIFA shall pay the instalment­s directly

● to the contractin­g parties in accordance with the terms of the above-mentioned contracts and a tender process shall be conducted for any contract involving a financial obligation for FIFA of 86 300 000 (E5.4 million) or more.

The consultant that is being engaged by the local project committee to look for the suitable contractor­s had not responded to Tuestionna­ires sent to it a week ago.

0ost of the companies that are listed as main contractor­s referred enTuiries to the client (EFA) or FIFA.

Isaac 0agagula, the &I& 1ormalisat­ion &ommittee, advised EFA to opt for the open tender system.

³There is nothing much to say except to advise them to consider the open tender. It¶s a transparen­t one. The selective tender may cause some problems in future as people start to suspect anything even if the selective tendering was done appropriat­ely,´ 0agagula advised.

The Times of Eswatini 6ports 'esk recently reported that the projects amounted to E106 860 354.16 in total.

It was reported that EFA decided to prioritise the constructi­on of the four technical centres over a full stadium facility.

Approved by the FIFA &ongress for the 2015-2018 budget cycle, the FIFA Forward 'evelopment 3rogramme provided each member associatio­n with E78 million in developmen­t funding every four years. 2n an annual basis, each member associatio­n was entitled to E19.5 million, while E11.7 million was allocated to tailor-made projects such as pitches, youth competitio­ns, and women¶s football developmen­t.

IMPLEMENTA­TION

The remaining E7.8 million was then allocated for ongoing operationa­l costs, including administra­tion and governance, implementa­tion of compliance reTuiremen­ts, and the hiring of administra­tion staff, among other needs.

According to the media reports, the local projects would need about E9 360 000 extra for the installati­on of an artificial turf.

In 2016, FIFA then introduced FIFA Forward, a new developmen­t programme offering structured, actionable, tailor-made solutions designed to meet the specific needs of each and every member associatio­n, and football participan­ts around the world.

 ?? (Courtesy pic) ?? The constructi­on of the artificial turf football fields in Eswatini and Ghana was, at some point, published on the Ghana Football Associatio­n’s website.
(Courtesy pic) The constructi­on of the artificial turf football fields in Eswatini and Ghana was, at some point, published on the Ghana Football Associatio­n’s website.
 ?? ??
 ?? (Pic: Mhlonishwa Motsa) ?? The KaLanga Technical Centre in Siteki, according to CIC, was constructe­d by Homeboyz Constructi­on.
(Pic: Mhlonishwa Motsa) The KaLanga Technical Centre in Siteki, according to CIC, was constructe­d by Homeboyz Constructi­on.
 ?? (Courtesy pic) ?? The Guyana Football Federation opens the sealed bids for the FIFA projects, which is often done in public view in that country, situated in South America’s North Atlantic coast.
(Courtesy pic) The Guyana Football Federation opens the sealed bids for the FIFA projects, which is often done in public view in that country, situated in South America’s North Atlantic coast.

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