10 September 2012

Namibia: Water Points Tender U-Turn Cancelled

AN ATTEMPT by the Tender Board of Namibia to backtrack on the award of a contract for the provision of water infrastructure training throughout Namibia was successfully challenged in the High Court in Windhoek on Friday.

The legal challenge was launched by two tenderers who were notified in July that the Tender Board had awarded the tender to them - only to be informed a month later that the decision had been changed and that the contract had not been awarded to them after all.

With the urgent application lodged by the close corporation, Tago Consultants CC and the Outjo-based Aargada Lucas Trading Enterprises not opposed by the Chairperson of the Tender Board and the Minister of Agriculture, Water and Forestry, who were the two respondents in the matter, a settlement agreement was made by an order of the court by Judge Collins Parker on Friday.

Tago Consultants and Aargada Trading Enterprises were asking the court to declare the Tender Board's decision to revoke an earlier decision to award the tender in question to them, as outside the powers of the Tender Board, in conflict with the Constitution, and accordingly null and void.

They were also asking the court to declare that the earlier Tender Board decision, in terms of which parts of the tender had been awarded to them, was a lawful decision.

The tender in question is for the provision of skills training in the maintenance and operation of rural water installations in various regions of Namibia.

In terms of a Tender Board decision taken on July 5, the contract to provide water point committee skills training in the Erongo, Kunene and Otjozondjupa regions, diesel engine caretaker skills training in the Kunene and Erongo regions, and windmill caretaker skills training in the Kunene Region was awarded to Tago Consultants CC.

Tago Consultants' tender bid for those components of the training services was at a price of about N$63 500.

Aargada Lucas Trading Enterprises was awarded the contract to undertake diesel engine caretaker skills training in the Kavango and Kunene regions, and handpump caretaker and solar pump caretaker skills training in the Kavango Region.

Moses Ikanga, the sole member of Tago Consultants, informed the court in an affidavit that his close corporation and Aargada Lucas Trading Enterprises were both notified on July 9 that the Tender Board had awarded those components of the contract to them.

On August 13, both tenderers received letters from the Tender Board in which they were told that there had been "a numerical misrepresentation" of the number of regions allocated to them with the tender award, and what the "correct number of regions" are, Ikanga stated.

The effect of the second decision was that the tender award was substantially diminished for both tenderers, Ikanga informed the court.

It also turned out that both Tago Consultants and Aargada Trading Enterprises had been changed into "second preference" tenderers, meaning that the contract had actually not been awarded to them, but that they were expected to be on stand-by to take over the work if the newly-preferred tenderers could not finish the job, Ikanga stated.

Having decided to award parts of the tender to the two tenderers, the Tender Board was not allowed to revisit that decision and change it, Ikanga claimed.

He also claimed that the Tender Board had acted outside the scope of its powers, and that it had no lawful basis to revoke its earlier decision on the tender.

The Tender Board also failed to give the two tenderers an opportunity to be heard before it took the decision to in effect revoke the award of the contract to them, Ikanga claimed. The Tender Board had failed to follow a fair process, he argued.

Tago Consultants and Aargada Trading Enterprises were represented by Andrew Corbett, instructed by Saima Nambinga of the law firm Angula Coleman.

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