Firm suffers heavy blow in fight over govt tenders

A bid by an information technology company to force government to limit the awarding of tenders for technology solutions to entities licenced by a leading German firm have hit a snag.

Twenty Third Century Systems (TTCS) wanted government tenders to be limited to companies that are partners of SAP.

TTCS, whose partnership with SAP was terminated in 2019 by SAP Africa (Pvt) Limited, a subsidiary of the giant German business outfit over undisclosed reasons, has been battling a clause on tender documents demanding that ICT companies wanting to provide digital solutions to government and parastatals be linked to SAP.

The company claimed the clause was discriminatory and a threat to fair competition and should be struck off.

TTCS used to benefit from the clause when it was still a SAP partner.

TTCS approached the Procurement Regulatory Authority of Zimbabwe (PRAZ) challenging the awarding of a US$68 000 contract to Tano Digital by the Zimbabwe Manpower Development Fund (Zimdef) in December last year.

Clause 10 of the invitation to tender document by Zimdef on October 22 demanded that: “Bidding companies should provide proof of being a SAP certified partner to carry out the required services.”

Zimdef wrote to TTCS on December 9 advising the company that the US$68 000 contract had been awarded to Tano Digital and requested the company’s banking details to facilitate a refund of the bid security.

The decision did not go down well with TTCS, which approached PRAZ seeking to force Zimdef to withdraw its offer to Tano.

The matter was sent for determination by the review panel in terms of the Public Procurement and Disposal of Public Asserts Act.

The panel sat primarily to deal with whether the inclusion of clause 10 of the bidding procedures was lawful because TTCS wanted the clause deleted.

Zimdef argued that the clause was necessary because SAP will need to be involved in the event that the software fails.

If the provider is not a SAP partner, Zimdef said, it would be difficult for either SAP South Africa or Germany to render assistance since it only deals with partners.

The review panel ruled that clause 10 was not a violation, according to the minutes of the ruling.

The panel said TTCS did not dispute the fact that non-SAP members would be a liability if the tender was awarded to a non-certified entity.

TTC, the panel said, only wanted to bring the capital that it was the one that brought SAP to Zimbabwe and was a SAP partner before.

The panel provided a long list of companies it is providing support services to, just to show that it knows the workings of SAP software well.

The panel, however, concluded that clause 10 was not problematic.

They said TTCS did not disclose to them why it was difficult to get SAP licencing.

“Of the four bidders, three of them were SAP partners,” the minutes dated February 2 read.

“As a result, we dismiss the challenge as it does not constitute a valid basis for a challenge.

“The applicant shall compensate the respondent for any expense or loss which is incurred as a result of the challenge.”

Meanwhile, TTCS MD Michael Gonese, has approached the High Court challenging the clause and the review panel that ruled against his company.

He claimed in court papers filed by Dube, Manikai, and Hwacha legal practitioners on March 15 that clause 10 was restrictive, unreasonable, and anti-competitive.

Gonese also raised concern over the composition of the panel that delivered the verdict on February 22, saying they all belonged to one institution, PRAZ.

He said the tender was awarded to Tano before their challenge was determined.

“I aver therefore that the decision of the 22nd of February 2022 is irregular and arbitrary.

“It must be set aside. There was no procedural fairness in the manner,” Gonese said.