Published by the government of Zimbabwe
11 October 2007
Harare — The Administrative Court has dismissed with costs an appeal by a local accounting firm seeking to quash the State Procurement Board's decision to award four tenders to two of its rivals.
Kudenga and Company accounting firm had challenged the SPB for awarding tenders to KPMG Ltd and Camelsa to carry out auditing work for four parastatals. KPMG was awarded tender to audit books of accounts for Zesa, TelOne and Air Zimbabwe, while Camelsa won the tender to execute audit work for NetOne.
Kudenga and Company, which won tender to audit books for NRZ, Zimpost, GMB and ZMDC had for a long time been enjoying the monopoly of doing work for all the parastatals with the exception of NRZ. The company was, however, aggrieved by the SPB decision to award tenders to its competitors. Kudenga appealed to the Administrative Court against the SPB decision.
In its appeal, the accounting firm argued that there was no legal or economic reason for SPB to remove these parastatals from its portfolio as the companies awarded tenders, some of them, quoted higher charges. Its also accused SPB of bias for rejecting its tender after satisfying the evaluation criteria in terms of the Procurement Act.
However, president of the Administrative Court Mrs Mary Zimba-Dube, who presided over the case, threw out the appeal for lack of merit. She had considered issues relating to the firms' auditing experience in general and in the parastatal line of business, in particular knowledge of statutory regulatory requirements. Mrs Zimba-Dube, in her ruling, found that there was no basis for setting aside the board's decision as the record did not disclose any evidence of bias, irrationality or any unreasonableness in the evaluation of any criteria.
"The appeal has no merit and is hereby dismissed," said Mrs Zimba-Dube. The court noted in its judgment that the tender was awarded to KPMG with the overall highest score. The secretariat, she noted, was of the view that even if KPMG had the highest cost, it proposed to devote more hours on the audit than Kudenga and Company. Mrs Zimba-Dube said Kudenga's tender was rejected because the hours it proposed were considered inadequate to cover the audit and the cost per hour was found to be expensive.
"Both the concepts of total hours and hourly rates are part of the evaluation criteria," she said. Mrs Zimba-Dube said although Kudenga's tender was cheaper than KPMG there was justification to award the tender to the latter. "A tender that is lowest to specification meets all other requirements of the tender. Appellant's tender appears to be cheaper on the face of it but one has to consider the hours to be put in," she said. The court also noted that Camelsa won the tender because of its experience in information and technology consultancy, which is particularly relevant to the business of NetOne.
Camelsa's knowledge of statutory regulatory requirement in this line of business contributed to the high marks it scored, Mrs Zimba-Dube said.
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