BANK ELEVATORS TENDER DISPUTE IN COURT

MBABANE – An elevators tender dispute is far from over.

This is so because the Eswatini Development and Savings Bank has now approached the High Court, challenging a decision to start the elevators tender afresh, among other prayers.

The financial institution, which is widely known as EswatiniBank, is challenging a decision of the Eswatini Public Procurement Regulatory Agency’s Independent Review Committee (IRC). Back in August this year, the IRC had ruled that the contentious tender be deemed to be none-responsive and the intention to award be set aside on grounds that were irregularities. Swazi Lifts (Pty) Ltd was an applicant in the matter that was before the committee. Before the latter body, Swazi Lifts successfully challenged the bank’s intention to award Otis (Pty) Ltd the installation and maintenance of the lifts tender and the tender was to start afresh. Swazi Lifts had claimed that Otis had not satisfied the tender criterion of police clearance and Eswatini National Provident Fund Compliance Certificate.

In the court application, EswatiniBank, among other prayers, now wants the August decision of the members of the IRC to be reviewed and set aside as unlawful and/or irregular.

In her founding affidavit, Zanele Dlamini, who is cited as the bank’s Executive Manager Finance, averred that four companies had responded to the invitation to tender. They were identified as Otis (Pty) Ltd, Immersion Project Managers, Swazi Lifts (Pty) Ltd and Schindler Lifts SA. “The applicant evaluated the bids filed on the evaluation criteria stated in the invitation to tender document.

“The applicant ultimately found that Otis (Pty) Ltd and Schindler Lifts SA were the best evaluated tenderers and issued a recommendation that the tender should be awarded to Otis (Pty) Ltd on the basis of their being the lowest evaluated bidder compared to the Schindler Lifts SA,” alleged Dlamini.

The bank said on or about February 25 this year, that it had notified all the bidders about the intention to award Otis the tender and they were given the mandatory 10 days to lodge an objection. On or about March 2, Swazi Lifts reportedly lodged an objection.

The review application by Swazi Lifts was opposed by the bank on grounds that the failure to file a police clearance and ENPF Compliance Certificate did not constitute a material deviation from the tender requirements as to render the bid by Otis to be declared none-responsive.

“The IRC does not have jurisdiction to determine the compliance or otherwise with Construction Industry Council Act as its jurisdiction is dictated by Section 46 of the Procurement Act,” claimed the bank.

The bank alleged a tender was not to be set aside or disqualified unless a finding was made that such tender materially deviated from the requirements.

“A material deviation is one which substantively falls within the provisions of Section 79 (3) of the Procurement Procedures.

“The IRC failed to take into account the provisions of Clause 5 of the tender document and provisions of section 79 of the Procurement Procedures. The IRC mechanically found that the mere fact that a document is missing should result in disqualification,” concluded the bank.

In the court papers, the applicant alleged that the IRC further materially failed to take into account that Otis being a South African company, could not rationally be expected to file an ENPF Compliance Certificate.

These are allegations whose veracity is still to be tested in court and the respondents are yet to file their papers.  Members of the IRC that include Lucky Howe, Amos Ngwenya and Lucky Manyatsi have been cited as the first three respondents in the matter. ESPPRA and Swazi Lifts are the fourth and fifth respondents, respectively. The matter is still pending at the High Court and appearing for the applicant are lawyers from Waring Attorneys in Mbabane.

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