Invalid freeway tender upheld

FRED GOEIEMAN The Supreme Court has found that no facts were placed before court as to the extent of the disruption – extra costs – to the N$1 billion contract to construct a freeway between Walvis Bay and Swakopmund should the tender be set aside and a different tenderer complete the tender.Where the facts indicate that the default remedy is not well chosen but does not go far enough so as to enable the court to fashion a remedy that will bring finality to the matter and will be somewhere between the default remedy and allowing the invalid award to be implemented.“Then the court will have no option but to allow the invalid award to stand,” acting Judge of Appeal Theo Frank stated in the judgment delivered this week. Judges Sylvester Mainga and Elton Hoff concurred.He consequently dismissed the appeal lodged by Chico/Octagon Joint Venture. The Chinese company has 90% shareholding in the joint venture while a local black economic empowerment group owns the remaining 10%.The applicant had together with 23 bidders tendered for the construction of a freeway between Swakopmund and Walvis Bay. The Roads Authority had invited bids for the construction of the freeway.About 14 bids were disqualified and the remaining nine tenderers were then evaluated with reference to what is termed the ‘Technical Score’ requirements. Only six tenderers reached the benchmark of 70 percent.The technical scores and prices were then combined to obtain a ranking of tenders and appellant was ranked first and the Unik/Thoni Joint Venture ranked second.The technical evaluation committee concluded that the appellant was the preferred bidder and recommended that it be awarded the tender and the recommendation was forwarded to the management committee who endorsed and in turn forwarded it to the board.The board considered the matter on 28 April 2016 and awarded the tender to Unik/Thoni Joint Venture and being aggrieved by the award the appellant communicated its concern to the Roads Authority and requested it to retract the decision and award the tender to it.When this did not produce required results the appellant launched an application to review and set aside the decision of the Roads Authority.The High Court in Windhoek found that it would be overstretching without justification its power to control the administrative decision-making of the Roads Authority (RA) if it were to interfere with its decision to award the N$1 billion tender to the Unik/Thoni Joint Venture.The court found that the RA’s decision not to award the tender to the joint venture group was fully justified.The board justification for awarding the tender to Unik/Thoni Joint Venture was that the project was a complex one and that the joint venture had a higher technical score and that Chico as a joint venture partner in Chico/Palladium was awarded another tender of similar nature and concerns arose as to the appellant’s capacity to duly complete the tender under consideration.In other words the appellant might be overstretched if awarded the tender. Third consideration was that the award to the Unik/Thoni Joint Venture would ensure equitable and wider spread of work between tenderers.The Chico/Octagon Joint Venture stated that as a preferred bidder the board had to award the tender to it and the failure to do so was irrational. It also maintained that it had not been given a hearing with regard to its capacity, nor was it forewarned about the criteria relating to the securing of a wider spread of work between tenderers.The court held that the board did not act irrationally, as the reasons for not awarding the tender to the appellant were relevant and connected to the proper execution of the tender.A fair process did require that the appellant should have been given a hearing in respect of the concerns raised about its capacity. The reasoning relating to the equitable and wider spread of work was not a relevant consideration as this was not communicated to the tenderers and according the process was not fair.The appellant had abandoned its initial application for interim relief allowing the Unik/Thoni Joint Venture to proceed with the work resulting into the expiration of one of a three year contract.“Work had been done, payments had been made and all the consequences normally flowing from the execution of a contract of this nature and scope had probably materialised,” the Supreme Court found.

Invalid freeway tender upheld

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Namibian Sun 2025-07-01

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Invalid freeway tender upheld

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Namibian Sun 2025-07-01

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