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Firms drag police to court

by Lesotho Times
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MASERU –– Two local firms are suing the Lesotho Mounted Police Service (LMPS) and the Ministry of Home Affairs for awarding a contract to supply police uniforms to a United States company that had been disqualified during the tender process.

Smally Trading Company and Noko Enterprises say the LMPS and its parent ministry gave the contract to Ferrini USA Inc despite the fact that the company’s tender had been disqualified because it did not meet the set requirements.

The respondents are police commissioner ’Malejaka Letooane, the Ministry of Home Affairs Ministry of Finance and the Procurement Policy and Advice Division (PPAD).

Other respondents are the attorney-general, Ts’okolo  Makhe-the, and Ferrini USA Inc. The contract was awarded in August last year. Smally Trading Company and Noko Enterprises filed a suit with the High Court seeking to declare the transaction unlawful.

The companies say Letooane and Home Affairs principal secretary Lefa Mokotjo authorised the contract to Ferrini.

The companies want their tender documents re-evaluated.

Smally Trading Company managing director, Leonia Mosothoane, told the High Court in her founding affidavit that what Mokotjo and Letooane did reflected “a tragic saga and cancer of corruption that I have never seen before”.

“It becomes intriguing and manifestly abhorrable because it has been committed by police officers, the very people we the citizenry look upon when criminal offences are committed against us,” Mosothoane said.

Mosothoane told the court that Ferrini was disqualified on the basis that it failed to provide mandatory formal requirements such as tax clearance, licence and samples to show how it would comply with the technical specifications.

The tender notice stated that suppliers were expected to attach certified copies of tax clearance certificates.

During the tender opening, which took place on July 23 last year, bidders were also checked if they were licensed traders.

They were also checked against the samples of the wanted uniform they had brought.

Mosothoane alleged that Ferrini was disqualified because it did not meet all these requirements.

Eight local companies had also tendered and complied with all requirements.

Noko and Smally had brought samples of the same quality which they bought from one manufacturer.

The tender panel told bidders that it would meet and consider if the qualified companies met the technical specifications.

On July 31 tendered companies were invited to a debriefing session where they were informed that none of them qualified. They were given reasons for their failure.

They were also told that the procurement unit had recommended that a re-tender had to be issued and the tender panel approved the recommendation.

Mosothoane told the court that she was not satisfied with the outcome.

“One of my fundamental reasons was that at the time the invitations were made for us to tender I was contracted to supply the same uniform that was to be supplied in the next financial year,” she said.

“The specifications that were used were identical with those for the year in which my company won the tender.

“The other reason was that my company and (Noko Enterprises) buy from one supplier and our technical specifications were identical. But surprisingly we were categorised separately and scored substantially different points,” she said.

Mosothoane said she complained to the PPAD which also said the tender process had to be restarted.

The PPAD wrote to the Home Affairs and the Procurement Unit instructing that the process had to be restarted but it was never heeded.

The procurement unit and the ministry replied saying Ferrini had been identified as the supplier.

She said they met the deputy principal secretary and Mokotjo in two separate meetings but the issue was not resolved. 

“In fact (Mokotjo) told us that the commissioner of police had requested him to purchase from Ferrini USA Inc because it won the tender,” she said.

 Mosothoane told the court that they approached the Directorate on Corruption and Economic Offences but they were told that the facts did not reveal that there was any wrongdoing which amounted to a criminal offence.

She said they went to the Ombudsman who wrote several letters to the home affairs ministry but only got a reply in January this year.

Mokotjo’s reply to the Ombudsman, Sekara Mafisa, was that the companies’ tenders had not succeeded and the PPAD had through the ministerial procurement unit made a selective tendering made up of all tendered companies and expatriate business people.

“I must say that the response was flawed in as far as the facts were concerned. In actual fact it did not and was not meant to take the Ombudsman into the confidence of the author,” Mosothoane said.

“First, the PPAD suspended the tendering process and indicated in clear terms in its correspondence that there was need for a re-tender,” she said.

“Second, it was completely false for the principal secretary to suggest that the PPAD had advised the Ministry of Home Affairs to pursue selective tender process.”

Mosothoane told the court that the PPAD ordered a re-tender when the ministry wanted a waiver of the transparent and fair procurement procedures and policy.

Mosothoane said when she realised that the ministry was adamant that Ferrini should be awarded a tender to provide police uniform she conducted her own investigations to find out why.

She told the court in the affidavit that she discovered that the head of procurement unit requested Letooane to purchase the uniform through what they termed selective tendering.

Request to Letooane was made after Ferrini’s disqualification and after all companies that had tendered were told the results.

She also discovered that after the request to Letooane, Ferrini’s managing director wrote Letooane and it was mentioned in the letter that Letooane gave Ferrini purchase order numbered D257853.

She said she also found that Letooane requested Mokotjo to arrange for pre-payment of 35 percent of the total price.

“I therefore submit that the principal secretary is wrong to suggest that there was any selective tender wherein Ferrini USA Inc was declared as the successful bidder,” Mosothoane said.

“I want to make it clear that the principal secretary of Home Affairs and the Procurement Unit know that on the 6th October 2008 the Director of PPAD wrote to them instructing them to put on hold the award of the contract and requiring them to furnish the full report to the tender process.”

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