Government hostels across the country are at the risk of running out of food after the Central Procurement Board of Namibia’s review panel suspended the contract awarded to four food supply companies, and ordered the tendering process to start afresh.
However, the education ministry on Wednesday approached the High Court with an urgent interdict against the implementation of the review panel’s decision to suspend the awarded food tender and have the process start afresh in a manner that does not interrupt the supply of food to the schools.
The ministry wants the decision halted while the court is dealing with the main review application in which it seeks the review panel’s decision in its entirety to be set aside, and such verdict declared invalid and of no force.
The review panel made the order on 26 July, following a review application on 13 July by Heritage Caterers, one of the companies which lost out on the tender.
On Wednesday, the ministry’s lawyer Freddy Kadhila said as a matter of urgency due to the school hostels having been scheduled to open on 17 July, the finance ministry granted an exemption to the education ministry so that it could procure food for school hostels without going through the normal tendering process. This meant the ministry would not have been complying with certain provisions of the Procurement Act.
On 6 July, the bid evaluation committee (BEC) evaluated bids from eight prospective companies. A bid evaluation report was then submitted to the procurement committee.
The evaluation was done in two phases: the obligatory documents phase, and the financial evaluation phase.
On 8 July, Tsepo Catering, Kunene Caterers, Atlantic Catering Solutions and Eyambeko Namibia Catering Services emerged as successful bidders to supply food from July to December.
A notice was given on 11 July to the unsuccessful bidders, being Free Namibia Caterers, Atlantic Food Services and Heritage Caterers.
The ministry on 17 July bought food from the successful companies for all schools in the 14 regions countrywide.
According to Kadhila, the review panel’s decision came at a time when the government had already bought the food from the suppliers. He said the review panel should not have suspended the tenders, regardless of any irregularities found.
“Should the review panel’s decision not be interdicted, the supply of food to hostels will be interrupted until the finalisation of the review application,” submitted Kadhila.
He argued that the decision is vague as to how it will be implemented without there being any interruption in the supply of food to the schools.
“This dark cloud of uncertainty, therefore, further compromises the interests of schoolchildren in the hostels as there will be no supply of food, pending the settlement of these disputes,” he added.
Kadhila said the ministry, by law, cannot reverse transactions for food that have already been purchased and dispatched.
Heritage, which is opposing the application, wants the court to dismiss it.
According to their lawyer Raymond Heathcote, Heritage was within the seven-day timeframe as required by law when it submitted its review application to the review panel.
He said Heritage sought a review because they had the lowest quotation, which could have saved the government nearly N$10 million. In addition, the ministry unlawfully used benchmark prices and the 5% margin preference - which was unknown to bidders.
He reasoned that the ministry was in the wrong when it entered into the agreements with the successful bidders as “during the standstill period, the public entity is prohibited from taking any further steps to implement the award to the successful bidders.”
Heathcote said the ministry further erred when it gave an executive summary to the unsuccessful bidders, instead of a formal notice.
Furthermore, the notion that the children will starve is untrue as Heritage will ensure an uninterrupted supply of food to the schools. Thus, the relief sought should not be granted.
The review panel did not partake in the proceedings.
Judge Boas Usiku will give a ruling on 8 September.