The protracted legal battle of Menzies Aviation to get back the multi-million-dollar ground handling tender that Namibia Airports Company (NAC) awarded to a joint venture between Paragon and JV Ethiopian Airlines has once again resulted in a Supreme Court loss.
On Tuesday, the Supreme Court dismissed an appeal lodged by Menzies against an interdict that the High Court last year refused to grant against NAC. Menzies wanted the High Court to temporarily interdict NAC from entering into any agreement with the joint venture, pending the finalisation of the review application it filed.
Supreme Court judges Sylvester Mainga, Elton Hoff and Theo Frank said the High Court was right in refusing the interdict Menzies sought.
"Because of Menzies' admitted non-compliance with the aforementioned bid requirements, I am of the view that, whereas they may have made out a prima faciecase for a review of the award to Paragon, they have not made out a prima facie case for the award of the tender to them," said the judges.
The judges went on to say, "The prima facie case made out by Menzies is that Paragon should also have been disqualified, and that the NAC could not evaluate the bids as it fell outside their mandate, as the value of the ground handling agreement exceeded NAC's threshold".
According to them, the case Menzies made was not of any assistance to them for the orders that they sought when they were correctly disqualified for non-compliance in their bid documents.
"Menzies must go further and establish, prima facie, that it would have been awarded the bid had the process to determine which bidder should be awarded the contract been conducted fairly and free of the alleged irregularities," said the judges.
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In the pending review application in the High Court, Menzies has accused NAC of favouring the joint venture between Paragon and JV Ethiopian Airlines during the tendering process despite discrepancies, including forgery, in their tender application.
The joint venture between Paragon Investment and JV Ethiopia was awarded the Hosea Kutako International Airport ground handling tender by NAC in December 2021, resulting in Menzies losing the tender.
In this review application, Menzies wants the court to declare that NAC is a category one public entity and, in terms of the law, may not handle a bidding process for a tender that exceeds N$25 million.
According to Menzies, the tender handled by NAC and awarded to the joint venture exceeds the threshold, suggesting the Central Procurement Board of Namibia should have handled the bidding process.
The company also wants the court to review and set aside NAC's decision to declare its bid invalid because it failed to initial all its pages and certify its registration documents. Furthermore, to set aside NAC's decision to award the joint venture the tender, and disqualify it.
Apart from the decisions to be reviewed, Menzies wants Section 4(2) of the Public Procurement Act declared unconstitutional.
The company has been providing cargo and handling services at Hosea Kutako International Airport since 2014. The contract has been extended twice and came to an end on 30 June 2022, by a flux of time.
However, they refused to vacate, but were finally ordered by the Supreme Court to vacate no later than 13 June 2023.
