Joint venture partners Paragon Investment Holdings and Ethiopian Airlines want the High Court to allow them to petition the Supreme Court over the exclusion of the bid evaluation committee in the review proceedings filed by its predecessor, Menzies Aviation, in 2022.
On 26 March, the High Court dismissed the joint venture’s application on the non-joinder of the BEC, citing that the committee does not have a direct interest in the review application.
In that ongoing review application, Menzies wants the court to review and set aside a Namibia Airports Company (NAC) decision to award a multi-million-dollar ground handling tender to a joint venture.
Menzies wants the court to declare that NAC is a category one public entity – and in terms of the law, it may not handle a bidding process of a tender that exceeds N$25 million.
According to Menzies, the tender handled by NAC and awarded to the joint venture exceeds the threshold, suggesting the Central Procurement Board of Namibia should have handled the bidding process. The company also wants the court to review and set aside BEC’s decision to declare its bid invalid because it failed to initial all its pages and certify its registration documents.
Apart from the decisions to be reviewed, Menzies wants section 4(2) of the Public Procurement Act declared unconstitutional.
During oral arguments before judge Shafimana Ueitele, lawyer Sisa Namandje, on behalf of the joint venture, said they take issue with the court’s ruling, and seek leave to appeal to the Supreme court.
He said the High Court failed to consider that Menzies, in its review application, is attacking the BEC’s decision to disqualify its bid.
“In this matter, the BEC disqualified Menzies’ bid so that there was no recommendation made to the Public Procurement Committee in respect of such a disqualification decision. Ultimately, the BEC was the primary and final decision-maker, with the only exception that the communication of the decision was made by the NAC’s accounting officer,” said Namandje.
Thus, they believe a different court will arrive at a different decision.
Menzies’s lawyer, Raymond Heathcote, argued it is flawed for the joint venture to continue stating that the BEC made the decision to disqualify Menzies, and not the NAC.
“Would it have been possible for Menzies to lodge a review application against the BEC recommendation before the NAC decided to accept or reject the recommendation? The answer is a clear ‘no’, as the review application will be premature, as the recommendation is just a recommendation,” he said.
He said no other court would give a different conclusion. Thus, the court must dismiss the application, as the joint venture does not have any prospect for success if they are granted leave to approach the Supreme Court.
“Moreover, if the BEC has a separate and distinct interest in the outcome of the review application, then notionally, what Paragon says is that Menzies’ review application against the BEC may succeed, but the same review application against NAC
may be dismissed. Such a result is impossible, as the BEC did not convey any result to the tenderers. Only the NAC conveyed the result to the tenderers,” he said.
The court will give judgement on 27 June. The joint venture, NAC and Menzies have been entangled in a legal brawl after the latter lost out on the ground handing service tender at Hosea Kutako International Airport (HKIA) in December 2021.
Menzies has been providing cargo and handling services at HKIA since 2014. The contract has been extended twice, and came to an end on 30 June 2022 by a flux of time.
The multi-million-dollar tender was awarded to the joint venture.
-mamakali@nepc.com.na