The High Court has ordered the Namibia University of Science and Technology to comply with its order in which it set aside the university’s decision to nullify a tender awarded to a local security company last year.
PIS Security Services approached the court on an urgent basis seeking an operation and execution of the order of the court by acting Judge Esi Schimming-Chase, granted on 17 November 2020, despite there being an appeal launched in the Supreme Court on 19 November 2020.
Schimming-Chase set aside a decision taken by the review panel of the Central Procurement Board of Namibia (CPBN) on 10 August 2020 to nullify the tender award to PIS Security Services and have the process start afresh.
In his ruling, acting Judge Collins Parker said NPS Security Services failed to establish what ‘irreparable damage’ would be done if the orders by Schimming-Chase were not suspended following the appeal being filed in the Supreme Court.
“The fourth respondent (NUST) not only supports the relief sought by applicant (PIS), but it also urges the court that the 17 November 2020 order should be ‘carried into execution immediately’. The urging of the employer cannot be airbrushed,” explained Parker.
In December last year, PIS was awarded the tender by the CPBN on behalf of NUST. However, the award was challenged by NPS Security Services and Shilimela Security and Debt Collection cc who applied to the review panel to have the CPBN to reconsider its decision.
The Procurement Act makes provision for unsuccessful bidders to submit applications for review of the selection if they are unhappy with the award.
This should be done within seven days of the notice of award.
However, on 23 January, the review panel declined their request.
After the panel’s decision, the procurement board proceeded to give a notice of award on 21 July to PIS Security Services.
The procurement board gave the unsuccessful bidders an additional seven days to approach the review panel if they were still aggrieved by the decision.
This time around, only NPS approached the review panel and on 10 August, the matter was heard.
The review panel found that the chairperson of CPBN Patrick Swartz failed to comply with the procurement regulations – that the deadline for bids is 29 days instead of the mandatory 30 days from the publication of the invitation to bid.
The review panel also found Swartz used an evaluation criteria and methodology which was not set out in the bidding document.
Thus, the evaluation of the bids was not completed in accordance with the criteria set out in the bidding documents.
Based on the findings, the review panel took a decision that the procurement process should start afresh. Consequently, the tender awarded to PIS Security Services was set aside.
PIS Security Services challenged this decision by arguing that the review lodged by NPS was non-compliant, citing it was done within the seven days provided for illegally by the procurement board.
“This was ultra vires the Act and fundamentally flawed because the seven-day period for review had already been provided and a purported review application, which was totally and materially non-compliant with the Act and law,” PIS Security Services had argued in their High Court application.
In the meantime, NUST and NPS entered into a short-term contract while the matter was before court. The CPBN and NPS opposed the High Court application by PIS Security Services, arguing the review panel had acted within the confines of the law when it nullified the tender award to PIS Security Services.
PIS were being represented by Tinashe Chibwana on instruction of Appolos Shimakeleni, whilst NPS was represented by Jacobus Visser from Koep & Partners and NUST by Tshuka Luvindao from Dr Weder, Kauta & Hoveka Inc.
- mamakali@nepc.com.na