By SIFISO NHLABATSI | 2022-11-24
The Independent Review Committee (IRC) has set aside a tender by the ministry of education and training awarded to Pride Oasis.
The tender was for the supply and delivery of equipment and chemicals for schools science laboratories.
This was after it was discovered that Pride Oasis did not submit a certified copy of VAT registration certificate and also did not meet the minimum three years threshold eligibility to tender since it was 10 months old when it submitted its tender bid.
The applicant, TOP EMS (pty) LTD, an aggrieved tenderer, challenged the decision by the ministry (first respondent) in awarding the tender.
Two respondents Pride Oasis and Ndou Investments according to the applicant did not actively participate in the proceedings. According to TOP EMS, they were cited for convenience purposes since the prayers sought will adversely affect them.
The matter appeared before the IRC chaired by Lucky Manyatsi, with Rudolph Maziya and Francis Vilakati as members. According to documents submitted before the IRC, the project was allocated a budget of E3.4 million by the ministry as a mere provision of funds allowable to be expended on the tender.
It was stated that the evaluated contract price that was tendered by TOP EMS to the procuring entity (ministry of education) was E1 603 943 and had TOP EMS been a successful tenderer, it would have been bound to a tender contract with the ministry for the sum of E1 603 943.
It was submitted that several companies responded to the ministry’s tender invitation and amongst them were TOP EMS, Pride Oasis and Ndou Investments.
Following an evaluation of the tender bids submitted to it, the ministry on September 19 is said to have published a notice of intention to award a contract in respect of the tender issued. According to the notice, the proposed award of the procurement was in bifurcated lots.
The ministry intended to award the tender under Lot 1 to Pride Oasis being the lowest priced tenderer for Manzini and Lubombo schools. It was submitted that under Lot 2 Pride Oasis also emerged victorious as the least priced tenderer.
It was stated that in terms of the rules of the tender process, a tenderer could only be awarded a tender for one lot. Hence Ndou Investments was the next responsive lowest priced tenderer which was intended to be awarded the tender under Lot 2 by the ministry.
TOP EMS was dissatisfied and aggrieved by the ministry’s intention to award the tender to Pride Oasis. It was disclosed that TOP EMS's dissatisfaction was premised on a contention that Pride Oasis was a non-responsive tenderer in terms of the requirements and eligibility to tender that were prescribed by the ministry in the invitation to tender documents.
It was stated that an internal review application of the intention to award the tender was filed by the applicant before the controlling officer of the ministry in compliance with the provisions of section 47 of the Public Procurement Act 2011 (‘The Act’). This application was unsuccessful and it prompted TOP EMS to file a review application with the IRC.
It was submitted before the IRC that TOP EMS’s grounds for review were two-fold. On the one hand the TOP EMS averred that Pride Oasis was a non-responsive tenderer in that she did not possess and submit the mandatory VAT registration certificate which was one of the requisite documents to be submitted in terms of the tender documents.
On the other hand, the applicant contended that Pride Oasis was a relatively new company at the time of submission of the tenders having been incorporated some 10 months earlier. Yet the ministry stipulated in the tender documents that eligibility to tender will be open to companies with minimum three years in operation with the head office or branch in Eswatini.
It was submitted on behalf of TOP EMS that the above shortcomings of the Pride Oasis qualification to tender were admitted by the company’s director during the opening of the tenders.
However, according to the application the ministry did not apply its own rules and instead overlooked these shortcomings by declaring the Pride Oasis as a responsive tenderer and subsequently recommended the award of the tender under Lot 1 to Pride Oasis.
TOP EMS gravamen was that the ministry ought to have disqualified Pride Oasis as a non-responsive tenderer. It was submitted that the effect of that would have been Ndou Investments emerging as the lowest evaluated tenderer for both lots.
“However due to the restriction in section 10 of tender document, the Ndou Investments was not going to be awarded the tender for both lots, hence TOP EMS was to be the next lowest evaluated tenderer for Lot 2,” the company’s legal representative submitted.
The ministry argued that in the assessment of its financial evaluation it does not bind itself to the lowest tenderer. It also argued that in relation to the complaint that Pride Oasis did not submit a VAT registration certificate, the ministry stated that it relied on a letter from the Eswatini Revenue Service (ERS), which confirmed that Pride Oasis was registered under the new tax identification process and thus accorded a new Tax Identification Number (TIN).
The ministry also argued that from a business profile that was submitted by Pride Oasis it deduced and considered that the company had a footprint all over the African continent spanning over 20 years providing similar goods to the ones sourced by the tender.
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