Principal Secretary of the Ministry of Trade and Industry Majakathata Mokoena Thakhisi
Lekhetho Ntsukunyane
A LOCAL company that tendered to print driver’s licenses has filed an urgent application in the Commercial Court seeking to block the Ministry of Public Works and Transport from awarding the tender to South African company, Muvoni Biometrics and Smart Card Solutions.
The company, Q7 (Pty) Ltd, argues through its lawyers, K. Ndebele Chambers, it is unlawful for the ministry to award the tender to Muvoni as it did not bid for the project in the first place.
In the application filed before Justice Lisebo Chaka-Makhooane on Monday this week, Advocate Tembo Lesupi of K. Ndebele Chambers, notes Q7 had tendered for the project but discovered through a newspaper article the tender had been awarded to Muvoni.
The ministry’s Principal Secretary (PS) Majakathata Mokoena-Thakhisi, the Ministry of Public Works and Transport, its procurement unit, the Procurement Policy and Advice Division, Attorney-General Tšokolo Makhethe and Muvoni are cited as first to sixth respondents respectively in the matter.
In the application, Q7 wants the court to issue a directive for the respondents to show cause why the PS, ministry and its procurement unit should not be ordered to dispatch a record of the proceedings of the tender panel and the decision made to award the tender to Muvoni.
The firm also seeks an order interdicting Mr Mokoena-Thakhisi from entering into a contract with the Muvoni.
The respondents, Advocate Lesupi notes, should respond within a period to be determined by the court.
For substantive relief, Q7 also wants the court to “review, set aside and declare null and void the decision of the first, second and third respondents to award the tender to for the production of drivers’ licenses to the sixth respondent.”
The company also wants the court to order the PS to start the tender process all over again.
Evidence led in court shows on 28 April 2016, the ministry published an invitation to interested companies to tender for production of drivers’ licenses. Q7 was among the companies that showed their interest by submitting their tender documents as per the tender notice.
Advocate Lesupi notes his client can “positively affirm” Muvoni was not among the companies that submitted bids.
He said they discovered on 22 July 2016 from a newspaper publication that the Ministry of Public Works and Transport had made a decision to award the contract to Muvoni.
“On the basis of the said publication, the applicant instructed its legal representatives to write a letter to the Ministry of Public Works and Transport challenging the granting of the said tender to the sixth respondent without following any tender process as envisaged by the Procurement Regulations of 2007,” the lawyer says.
“To date, neither the ministry nor the first respondent has responded to the said letter. Instead, the first respondent gave an interview to one local newspaper, in the said newspaper article, the first respondent indicated that representatives of the sixth respondent held meetings with the Minister of Public Works and Transport, but stated that the said meetings did not result in the signing of the contract.”
Advocate Lesupi adds: “We have, however, come to know from people within the procurement unit at the Ministry of Public Works and Transport that indeed the ministry and particularly the first respondent is on the verge of signing the tender contract with the sixth respondent. This fact alone renders the application urgent.
“I further verily aver that the averment by the first respondent to the effect that the minister is already holding meetings with the sixth respondent is enough to have the applicant company apprehensive that indeed the minister is willing to have the contract awarded to sixth respondent without any due process.”
He argues Muvoni’s selection was illegal by virtue of not bidding for the tender.
“Applicant contends that the sixth respondent has not bid to produce licenses for the government of Lesotho as was advertised. It is therefore unlawful that a company that falls outside the procurement of tender process could be considered for a project that it did not even tender for,” says Advocate Lesupi.
“Applicant submits this ground alone is enough to render the procurement process that resulted in the award of the contract Muvoni unlawful and susceptible to being reviewed and set aside.”
The solicitor argues procurement regulations were clear and unambiguous.
“. . . once the relevant tender panel has issued an advertisement, interested parties have to react to the advertisement, and only those companies that have reacted to the advertisement shall be considered for the project,” he says.
“Further, applicant contents that the decision of the first, second and third respondents to award the contract to the sixth respondent is unreasonable, this is because the applicant has learned that the sixth respondent is going to perform the said task for a reported fee to the government of Lesotho for an estimated figure at about M9 million.”
Advocate Lesupi continues: “This figure is double the quotation that was proposed by the applicant company to do the same project. It is applicant’s contestation that it is irrational for the respondents to elect to burden the public purse with such an unreasonably high costs. But if this assertion turns out to be untrue, then the respondents will be ordered to dispatch the record of the sittings of tender panel to dispute this allegation.”
Meanwhile, Advocate Lesupi told the Lesotho Times yesterday the respondents were expected to file their opposing affidavit today.
“We are also expected to meet before Justice Chaka-Makhooane to argue over issues pertaining to urgency and interdiction pending finalisation of the matter tomorrow (today),” he said.
Efforts to contact the respondents’ lawyers proved fruitless until the time of going to print last night.