The Court of Appeal has upheld an Appeal by Landmark Projects (PTY) LTD, Van & Truck Hire PTY LTD to be awarded the tender for Tshesebe-Mosojane-Masunga Road project.
The High Court held that Cul de Sac was entitled to be awarded the tender after the company challenged the processes and factors that influenced award to the two companies.
Other appellants were the Public Procurement and Asset Disposal Board; The Attorney General; Zebra Construction; and Independent Complaints Review Committee (IC).
Landmark, VTH JV bid was P379.3million; Bango/Zebra JV was P391.6million, whilst Cul de Sac was P407.3 million.
At some stage Cul de Sac was disqualified for non- responsiveness on grounds that it had no experience in road construction, but was reinstated at the instance of the Board to which it had complained.
The evaluation committee recommended Landmark/VTH JV since it was the lowest bidder among responsive bidders.
Initially, the Ministry of Transport and Communications had made a recommendation to the Board for the tender to be awarded in line with the evaluating committee’s report.
The Board did not accept the recommendation, reasoning that the project was under the Government Economic Stimulus Program (ESP) which policy stipulated that projects should not be awarded to any entity which had already benefitted from the program. This factor was initially left out at the Invitation to Tender Stage.
The Board had noted that Landmark/VTH JV had an existing project under the program and therefore was not entitled to another award, but the recommendation was returned for reconsideration.
The ministry then recommended the award to Bango/Zebra JV being the next lowest cost responsive bid to which the Board responded in the affirmative on 12th September 2019.
After the Board had a debriefing session with Landmark/VTH JV and Cul de Sac PTY LTD and the two became aware that ESP Policy consideration played a huge part in the awarding of tender to Bango/Zebra JV.
The two bidders immediately lodged a complaint to the Board, with Landmark/VTH JV questioning the introduction of ESP factor, whilst Cul de Sac argued two factors; ESP policy and that Bango had already benefitted from ESP.
The second argument was that Landmark/VTH JV had failed to satisfactorily complete their projects on schedule.
However, a Fact-Finding mission was sent to assess the Landmark/VTH JV project in Thalamabele-Mosu road and were satisfied with the performance.
The Board dismissed the complaints by the two companies, but they separately approached the Independent Complaints Review Committee (IC) which convened in December 2019.
“The authenticity of the minutes of that meeting has been stridently challenged by Cul de Sac in court proceedings, arguing that the there was no meeting held to consider its appeal and that those minutes were bogus and contrived,” says the Court of Appeal ruling.
The High Court record shows that that Landmark/VTH JV complaint against introduction of ESP factor was upheld and that Cul de Sac was dismissed.
It also found that the letter notifying Cul De Sac of its dismissal was unprocedural.
The Court of Appeal set aside the High Court verdict and remitted the matter back to the Independent Commission for the MTC to recommend the award of the tender to Landmark/VTH JV.
The C/A was not satisfied with Cul de Sac experience in road construction and ordered it to pay the costs of the appeal.
