Judge dismisses bid to halt FMD fence award

Iuze Mukube

Windhoek High Court Judge Boas Usiku has dismissed an application that sought to interdict the Central Procurement Board of Namibia (CPBN) from proceeding with its decision to award the Foot-and-Mouth Disease (FMD) veterinary cordon fence contract to the second-ranked bidder on an emergency procurement basis.

The stay application lodged by China Jiangxi International (Namibia) JV Homefin Properties CC, arose following the decision by the CPBN to cancel the competitive procurement process, in which the company had been selected to construct the FMD veterinary cordon fence at a tender of about N$126 million.

The company therefore sought an interdict against the CPBN and other respondents’ decision to cancel the original tender and proceed with an emergency procurement process, which resulted in the contract being awarded to the second-ranked bidder, Punchu Trading CC, JV China State Construction Engineering CO. for about $122 million.

The company argued that procedural and substantive fairness are central to the Public Procurement and the process, and sections of the Act seek to ensure that the process is conducted with integrity, accountability and transparency while promoting competition, informed decision-making and legality.

According to the company, any arbitrary conduct, maladministration or corruption is inconsistent with these principles, as well as with constitutional requirements.

It indicated that following the need for a veterinary cordon fence to contain the spread of foot and mouth disease along the borders with South Africa, it received a notice from the CPBN that it was selected for the award of the procurement contract to construct veterinary cordon fences along that border.

The project involves the construction of 155 Km of fencing along the Orange River and a further 30 Km between Klein Manasse border and Mata Mata border posts in the //Kharas region.

However, China Jiangxi was later informed that the competitive bidding process was cancelled on 03 September on the alleged basis that the process had apparently failed to create or achieve the expected outcome.

The CPBN also informed all the parties that participated in the bidding process it awarded the procurement on an emergency basis to Punchu Trading CC, JV China State Constructing Engineering Co, which was the second-ranked bidder in the original competitive bidding process.

The company argued that the decision was taken without affording an opportunity to be heard and was contrary to section 33 and 36 of the Public Procurement Act.

It further argued that the decisions were ill-informed, lacked transparency, were unfair and unlawful and resulted in a process that was suboptimal and uncompetitive, while raising concerns about possible corruption.

The company therefore sought for an order to immediately stop the implementation of the emergency procurement decision pending the determination of the legality of the CPBN’s decisions.

In the court documents, the evidence given by CPBN allegedly indicate that Punchu has commenced with implementing the contract and that the real reason for the cancellation was imminent threat of the Foot and Mouth Disease spreading into Namibia.

In his judgement yesterday, Judge Usiku found that “on the strength of the evidence that the third respondent [Punchu] has commenced with the implementation of the contract and the evidence of the escalating threat of the spread of foot and mouth disease, which the construction of the veterinary cordon fence is aimed to contain, the balance of convenience does not favour the grant of the interim interdict.”

He found also that the conduct of the CPBN by not informing the relevant bidders of the real reasons for its intended cancellation of the bidding process, leaves much to be desired.

“By informing the affected bidders that the bidding process is being cancelled because ‘it does not create or achieve the expected outcome’ is as good as not providing reasons at all.”

Punchu has already made arrangements for mobilisation of the necessary tractors, equipment and materials to the relevant sites, and has commenced the works.

This considered with evidence of the alleged outbreak of Foot and Mouth Disease in South Africa, and the imminent threat of it spreading in Namibia and the urgent need therefore for the construction of the fence to contain the disease.

The judge dismissed the application for interdictory relief and ordered that each party bear their own legal costs.

Therefore, the dismissal of the interdictory application allows the procurement process by emergency and the resulting award to stand.

The matter is regarded as finalised, with the main application pending in regards to the legality of the decision of the CPBN.

–imukube@nepc.com.na

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