Court halts plans for CRAN headquarters construction
Tender process stopped
Although the notice of award for the tender was sent to companies by e-mail, one company's message ended up in junk mail box.
Plans for the construction of the Communications Regulatory Authority of Namibia (CRAN)'s new headquarters in Windhoek have been halted following a court order.
This comes after the Windhoek High Court delivered a ruling on Tuesday in an urgent application regarding irregularities in the tender process.
In July last year, CRAN invited companies to submit proposals for “consultation services for architectural planning, engineering, design, and cost estimation.” After an evaluation process, the tender was awarded to Bartsch Architection Architects in October.
The High Court has stopped the implementation of this tender award after Marley Tjitjo Architects Inc., one of the other bidders, filed an urgent application.
In the application, Marley Tjitjo Architects Inc. sought an interim interdict to suspend the tender process pending the outcome of a review application it had also filed with the court.
The application was heard on December 19, and Judge Nate Ndauendapo ruled in favor of Marley Tjitjo Architects Inc. on Tuesday. He also ordered CRAN to pay the legal costs of Marley Tjitjo Architects Inc.
Email lost in spam
Marley Tjitjo Architects Inc. filed the urgent application after claiming it did not receive the notice of the tender award.
By the time it became aware of the award in November, the seven-day period for filing a reconsideration application had already expired, and its application for reconsideration was rejected.
Managing Director Marley Tjitjo argued that CRAN’s failure to provide it with the notice deprived the company of its right to file a reconsideration application.
CRAN maintained that it had sent the notice to all unsuccessful candidates via email and even proved in court that the email was sent to Marley Tjitjo Architects Inc.
However, after an IT technician reviewed Marley Tjitjo’s devices, it was discovered that the email had ended up in the company’s “spam” folder and was never seen.
During the hearing, CRAN argued that it could not be held accountable for the email ending up in the spam folder.
Court ruling
In Judge Ndauendapo’s judgment, he addressed the issue of email correspondence and proof of service.
CRAN argued that a directive issued by the Minister of Finance in September 2020 allowed service documents to be sent via email during the COVID-19 pandemic to reduce the spread of the virus. However, the judge noted that the directive lacked clarity regarding proof of service.
Judge Ndauendapo ruled that it was CRAN’s responsibility to ensure Marley Tjitjo Architects Inc. received the notice.
“The onus was on the second respondent [CRAN] to prove that the notice of the award was served on the applicant [Marley Tjitjo Architects Inc.] in accordance with the law,” the judgment stated.
He further found that CRAN should have accepted Marley Tjitjo Architects Inc.’s reconsideration application since it was submitted within seven days of the company becoming aware of the award.
CRAN’s failure to do so, he concluded, amounted to a violation of Marley Tjitjo Architects Inc.’s right to be heard and was contrary to Article 18 of the Constitution.
– [email protected]
This comes after the Windhoek High Court delivered a ruling on Tuesday in an urgent application regarding irregularities in the tender process.
In July last year, CRAN invited companies to submit proposals for “consultation services for architectural planning, engineering, design, and cost estimation.” After an evaluation process, the tender was awarded to Bartsch Architection Architects in October.
The High Court has stopped the implementation of this tender award after Marley Tjitjo Architects Inc., one of the other bidders, filed an urgent application.
In the application, Marley Tjitjo Architects Inc. sought an interim interdict to suspend the tender process pending the outcome of a review application it had also filed with the court.
The application was heard on December 19, and Judge Nate Ndauendapo ruled in favor of Marley Tjitjo Architects Inc. on Tuesday. He also ordered CRAN to pay the legal costs of Marley Tjitjo Architects Inc.
Email lost in spam
Marley Tjitjo Architects Inc. filed the urgent application after claiming it did not receive the notice of the tender award.
By the time it became aware of the award in November, the seven-day period for filing a reconsideration application had already expired, and its application for reconsideration was rejected.
Managing Director Marley Tjitjo argued that CRAN’s failure to provide it with the notice deprived the company of its right to file a reconsideration application.
CRAN maintained that it had sent the notice to all unsuccessful candidates via email and even proved in court that the email was sent to Marley Tjitjo Architects Inc.
However, after an IT technician reviewed Marley Tjitjo’s devices, it was discovered that the email had ended up in the company’s “spam” folder and was never seen.
During the hearing, CRAN argued that it could not be held accountable for the email ending up in the spam folder.
Court ruling
In Judge Ndauendapo’s judgment, he addressed the issue of email correspondence and proof of service.
CRAN argued that a directive issued by the Minister of Finance in September 2020 allowed service documents to be sent via email during the COVID-19 pandemic to reduce the spread of the virus. However, the judge noted that the directive lacked clarity regarding proof of service.
Judge Ndauendapo ruled that it was CRAN’s responsibility to ensure Marley Tjitjo Architects Inc. received the notice.
“The onus was on the second respondent [CRAN] to prove that the notice of the award was served on the applicant [Marley Tjitjo Architects Inc.] in accordance with the law,” the judgment stated.
He further found that CRAN should have accepted Marley Tjitjo Architects Inc.’s reconsideration application since it was submitted within seven days of the company becoming aware of the award.
CRAN’s failure to do so, he concluded, amounted to a violation of Marley Tjitjo Architects Inc.’s right to be heard and was contrary to Article 18 of the Constitution.
– [email protected]
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