THE State Procurement Board (SPB) has approached the Supreme Court seeking to apply for extension of time within which to note an appeal to challenge the judgment of the Administrative Court over the tender proceedings impasse.
CHARLES LAITON
The SPB filed the papers on Monday this week where it is applying for more time in order to appeal against Justice Herbert Mandeya’s judgment which ordered the tender adjudication board to reverse the cancellation of the tender proceedings it had effected against Nextcom Group.
According to the court papers under case number AC/7/14, sometime last year the Postal and Telecommunication Regulatory Authority of Zimbabwe (POTRAZ), through the SPB floated tender number POTRAZ/USF/13/SIF which was closed on September 27, 2013.
The tender was for the provision of passive telecommunication infrastructure for the co-location of licensed operator’s equipment in underserved areas in the country.
Earlier in the year, there were two tenders floated for the same purpose, one floated on February 7, 2013 and another floated on July 11, 2013 but was both cancelled by SPB because all bidders had failed to meet tender requirements.
However, according to Justice Mandeya, the September 2013 tender, which gave birth to the current court battle, was irregularly cancelled.
“The respondent (SPB) cancelled the tender after the technical evaluation stage upon observing “technical irregularities in the request for proposals regarding audited financial statements and tender sums”,” Justice Mandeya said.
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“It is the procurement entity in this case the POTRAZ, and the respondent that compiled the request proposals. Bidders were merely to meet the requirements set out in the request for proposals.
“It is accordingly not fair to cancel a tender for an irregularity created by the respondent and the procuring entity.”
Mandeya further said the court was not satisfied that such a “self-created irregularity” was justification for putting bidders to great expense in trying to meet all the tender requirements.
“After all the public is not served properly if goods and services are not provided because those entrusted with procuring those goods and services cover up their own mistakes by shifting the blame to bidders,” he added.
“For that reason the court dismisses the respondent’s second reason for cancelling the September 2013 tender.”
Commenting on the other reasons proffered by SPB for the cancellation of the tender in which SPB said all bidders had failed to meet the tender requirements.
He said: “The mandatory technical requirement is that “failure to meet mandatory requirements will lead to bid disqualification (which was not the case).
“The respondent clearly fell into the error of failing to distinguish between mandatory technical requirements and a mere technical requirement…the misdirection is understandable because this tender is highly technical.”
The matter is yet to be set for hearing.
