The High Court refused Namibia Protection Services’ request to compel the Central Procurement Board to avail competitors’ bids.
NPS took the Board to court after it partly lost out on a tender to provide security services to the ministry of health last year.
In court documents, NPS chief operations manager Fanie Horn said despite offering the ministry the lowest prices for their services, they were not chosen as successful bidders for the bigger lot, but were only given the smaller lot. Vicmac Security CC was awarded the tender, despite having submitted a bid that was twice NPS’ bid, which was N$2.5 million.
“I take no issue with the criteria applied by the board for the allocation of the lots. However, I take issue with the fact that Vicmac Security CC was awarded Lot 1 for the Khomas Region, despite the fact that NPS’ unit price is significantly cheaper than that of Vicmac,” submitted Horn through his lawyers.
NPS argued thatvthe procurement board failed to appreciate the primary purpose of the lowest price requirement, which is to save costs for the government.
According to NPS, the financial information on what each bidder bid for each of the 13 lots should be availed so that it can determine “which lot should have been given to which bidder to maximise cost-savings for government”.
NPS further reasoned that the procurement board failed to furnish all information to unsuccessful bidders, as required by law. They only gave unit prices for qualifying bidders for one year.
Deputy Judge President Hosea Angula dismissed the application, citing that it is not NPS’ obligation to ensure that government obtains value for its money during public procurement – that duty lies with the bid evaluation committee.
In light of their request, Angula said NPS wants to play both the roles of bidder and evaluator.
“I consider the request or demand to be rather unconventional in the area of tenders… If trade secrets are shared between NPS and the board without the affected bidder’s consent, that amounts to a serious violation of those bidders’ rights, which would be actionable against the board,” stated Angula.
The court further noted that the financial information of bidders is subject to confidentiality, and it is the board, bid evaluation committee and review panel’s obligation to protect bidders’ trade secrets against competitors.
The court also ordered NPS to cover the costs of the matter.