A COMPANY that was disqualified in a multi-million maloti tender for the supply of fertilizer has challenged the decision and accused the Ministry of Agriculture’s Procurement Policy and Advice Division of flouting procurement procedures.
The company, Hippo Transport Pty (Ltd), tendered for the supply of fertilizer in the estimated M57 million deal, along with Alpha Agro Chem and Kynoch.
However, during the opening of the bids on 7 July 2016, it was discovered Hippo Transport’s trader’s licence was not valid resulting in an automatic disqualification leaving the other two firms.
Hippo Transport Pty (Ltd) has since appealed the disqualification, arguing the decision was unprocedural and that its competitors also flouted procurement guidelines.
Through the company’s lawyers, Phoofolo Associates, the company wrote a letter addressed to the Procurement Policy and Advice Division objecting to the disqualification.
Part of the letter, dated 1 August 2016, reads: “Your good office shall further realize that the said decision in terms of Regulation 54 (1) read with Regulation 3 must be made by a body referred to as the procurement unit and not an individual whose capacity is that of a senior procurement officer as is the case with reference to the said letter and or decision.
“This view we hold because the letter and/or decision does not outline the capacity of the author and whether the relevant person has been duly authorized by the relevant body.
“We take strong exception to the said decision on the grounds that it is irregular on the score and does not qualify as a decision contemplated under Regulation 54 (1) which provides that the decision must be made by the procurement unit, not a senior officer.”
In their grounds of appeal, the lawyers argue the decision that their complaint was prematurely lodged and that it ought to have been lodged only after the award of the contract was “flawed”.
“This is more so in light of the fact that there are complaints which precede the signing of the contract and it cannot be the proper construction of the legislative framework that the complaint can only be lodged after the signing of the contract,” the solicitors argue.
“The disqualification of client in the tender does not emasculate him of the right to complain about his competitors who were non-compliant with the procedural guidelines to a fair competitive tender as prescribed in Regulation 14 (1).”
The lawyers also assert Hippo Transport Pty (Ltd) was within its rights to lodge a complaint even if it was disqualified.
“The decision that client is disqualified from lodging a complaint due to its non-compliance with the law during the tender opening is evenly flawed and taken issue with.
“Tenderer within the context of the Regulations is not restricted to ‘successful tenderers’ only,” state the lawyers, adding the unit did not issue the decision within specified time as specified by the law.
Contacted for comment on the appeal, Kynoch agent Buti Nkhabutlane, said: “I received a letter from the Ministry of Agriculture notifying us of a complaint and inviting us to the proceedings on a venue and date yet to be announced.”
He said he was not ready to say anything more as “we are still waiting for further details”.
The ministry’s Senior Procurement Officer, ’Mantšebo Ntaote, also told the Lesotho Times they were not aware of the date and venue fixed for the proceedings as they were awaiting correspondence from the Minister of Finance.