High Court nullifies PRAZ fresh tender

THE Procurement Authority of Zimbabwe (PRAZ) cannot float a fresh tender for SAP software application services before the dispute over the previous tender pending in the courts is finalised, the High Court has ruled.

The ruling comes after Twenty Third Centuries System (TTCS), one of the losing bidders in the previous disputed tender, had approached the High Court seeking an order to suspend the new procurement process instituted by the Ministry of High Education and Tertiary Education, Innovation Science and Technology Development.

The urgent application came soon after the determination of case Number HC1727/22, which was an application for review and setting aside of the decision of Zimbabwe Development Fund awarding a tender to Tano Digital Solutions (Pvt) Ltd to provide SAP software services .

TTCS in July this year won its case on review to suspend the tender after Zimdef, who had been using TTCS since 2015, in February last year demanded that all bidders had to be certified.

The tender process was also set aside on the basis that the review panel was unlawfully constituted.

Through its lawyer Mr Ishe Chikaka, PRAZ sought to argue that it flighted a new tender on September 9 to correct an irregularity of the previous tender saying restarting the tender process was the correct procedure at law. But this was shot down by TTCS lawyer Advocate Method Ndlovu instructed by Dube, Manikai and Hwacha law firm, who argued that the Ministry could not institute a new and parallel tender process while the previous process was unterminated.

Justice Webster Chinamora upheld the contention by TTCS noting that the pending appeal has not yet been determined, a fact not denied by PRAZ.

In view of the pending appeal on the previous tender, Justice Chinamora said it gave the technology firm the right to make an application for an interdict for the new process, while also finding that the Ministry of Higher Education could not sustain the argument that the fresh tender was done to correct irregularities.

If anything, the judge found that the new tender compounded the irregularities since the tender under ZPCR29-2021 remained incomplete until a decision was made on the appeal. The court also disagreed with the legal counsel for the Ministry that the judgment in HC1737/22 was set aside on the ground that the panel was not properly constituted hence the it was at liberty to start the process anew.

The correct position, according to Justice Chinamora, was to deal with unfinished business of the appeal first. “Thus, it is incompetent and unlawful, in my view, for the first respondent to start a new process which overrides a, lawful statutory process,” he said.

Consequently, the judge was satisfied that TTCS had established the basis for the relief sought and slapped the Ministry with punitive costs of suit for abusing the court process.

An award of costs at the higher scale is a drastic measure, and one that is only resorted to where the court is satisfied that there has been an attempt to abuse the court process or for some other good reason.

“The pending process is a lawful one done in terms of the Public Procurement Act and an argument that the respondent (the Ministry) was entitled to start a new tender process, which effectively overrides the unresolved appeal, is most disingenuous,” said Justice Chinamora.

In addition, the judge said the apparent disregard of the law by the Ministry in this case was cause for concern that made an appropriate case for the court to show its displeasure by awarding costs at the higher scale of attorney and client against the Ministry.

In its application, TTCS had argued that PRAZ could not conduct a tender process with the conditions that a bidder must be a holder of a SAP licence, as that would effectively undermine the same court’s judgment of July 26.

In the pending appeal, Zimdef is, seeking to overturn a decision of the High Court granting TTCS a provisional order blocking the development fund from awarding a tender for SAP software application services to Tano Digital Solutions, pending determination of what it called a restrictive and anti-competitive condition added by Zimdef, requiring bidders to hold an SAP licence.

The appeal was recently struck off the roll because Zimdef did not comply with the court rules.

The High Court order was an interim interdict which could not be appealed without leave of the court. However, Zimdef lost the tender dispute more permanently after the High Court nullified the tender process on the grounds that the review panel looking into complaints by TTCS was improperly set up.

The tender to Tano Digital Solutions was granted without following clear and peremptory provisions of the Public Procurement and Disposal of Public Assets Act. Complaints lodged by TTCS to PRAZ were not properly handled.

The law requires that a review panel must be set to deal with complaints raised by the bidders in regard to granting or refusing of a tender.

At law the review panel must be constituted by at least three members: one from the Law Society of Zimbabwe, a civil servant and an expert in the procurement industry. In this case, the panel was composed of three lawyers: Mr James Mutizwa, Mr Joe Mambara and Mr Moses Nkomo.