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COURT DISMISSES SLOMOES’ TENDER REVIEW BID

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MBABANE – Slomoes Corporation has been unsuccessful in its court bid to stop an intention to award a tender to one of its competitors, among other prayers.

The Corporation had run to court seeking an order reviewing and setting aside the decision of the Bongani Dlamini-chaired Independent Review Committee (IRC) dated June 30, 2020. IRC is under the Eswatini Publixc Regulatory Procurement Regulatory Agency. The latter was a second respondent in the court application.

The  dispute emanated from the procuring entity, Eswatini Investment Promotion Authority (EIPA) evaluation committee’s decision to reject Slomoes’ bid for the supply and installation of electronic systems in the proposed multi-million Emalangeni project of Kellogg’s Tolaram Factory.

The tender was captioned ‘Proposed construction of the Kellogg’s Teloram Factory Matsapha- Electronics Installation (Nominated Subcontract)’.

The IRC, in its sitting, upheld the decision of EIPA’s evaluation committee. This prompted Slomoes to seek redress in court, where it sought an order reviewing and setting aside the intention to award a contract to one of the bidders, Mukwa Electrical Services (Pty) Ltd.  The applicant also wanted the court to direct the tender evaluation process to start afresh and it further wanted to be included.

On Tuesday High Court Principal Judge Qinisile Mabuza ruled that there was nothing to review and/or set aside in respect of the notice to award as well as decision of the IRC. 

Meanwhile, on opening of the bid documents from the various companies, the applicant’s tender document was found to be not responsive (compliant) on the ground that Slomoes had reportedly left a whole section, namely Section  6 on the Bill of Quantities, not priced.

The applicant was, as a result, disqualified. Dissatisfied with the decision, the latter invoked provisions of Section 47 of the Procurement Act, which essentially is an internal review to the procuring entity (which in this case was EIPA).

overturn

The applicant was unsuccessful in the bid to overturn the decision. In line with provisions of Section 49 of the Procurement Act, 2011, the applicant approached the IRC for a review of the controlling officer’s decision of declining to entertain its complaint. 

The first sitting of the IRC was a few months ago at Eswatini Public Procurement Regulatory Agency (ESPPRA) boardroom. One of the grounds for review, as per the applicant, was that the decision to reject its tender was irregular and unprocedural.

“The provision does not preclude tenderers bearing incomplete schedule. It is therefore in our firm view that our tender was not supposed to be rejected/disqualified based on the assertions that Bill 6 was not priced,” the application had earlier argued.

The IRC found that by writing to the applicant and asking it to attend to Section 6 of the Bill of quantities, the procuring entity was clarifying that it was mandatory and had to be completed.

“If the applicant had chosen not to charge for Section 6, namely the audio visual system, then it should have expressly and in writing stated its response to the procuring entity that it was not charging for the installation of and labour in respect of the audio visual system.

“As a matter of fact, the applicant should have included item 6 in its bill of quantities but write ‘nil’ in all the components of this item,” observed the IRC.

Having considered the written grounds advanced on behalf of the applicant for the rejection of its bid by the respondent and the respective submissions, the IRC concluded that the applicants’ bid was lawfully and properly rejected by the evaluation committee appointed by EIPA.

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