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PS disregards court on M140 million tender

by Lesotho Times
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Pascalinah Kabi

A PARLIAMENTARY portfolio committee has recommended that Chinese firm, Yan Jian Construction, be awarded the M140 million tender to construct the new senate building in Maseru.

The portfolio committee also said the Ministry of Public Works Principal Secretary, Mothabathe Hlalele, was in contempt of court when he ordered the reevaluation of the M140 million construction tender in 2017.

Yan Jian were initially awarded the tender in 2016 but could not proceed with construction after PS Hlalele ordered the re-evaluation of the senate building tender on the grounds that some of the companies which had applied for the job in 2012 had been unfairly disqualified.

The tender was subsequently awarded to Qing Jian Group, a company that was initially disqualified in 2012 along with Sigma Construction and China Shanxi Construction.

The three companies were disqualified for failing to meet various bidding requirements and in the case of Qing Jian, the company was adjudged to have failed to submit tender documents that were translated into English and authenticated by the Chinese Embassy in Lesotho.

But in a new turn of events, the Prime Minister’s Ministries and Departments, Governance, Foreign Relations and Information portfolio committee last week found that Qing Jian Group, Sigma Construction and China Shanxi Construction were “lawfully and rightfully” disqualified in 2012.

The committee further stated that Qing Jian Group was awarded the contract after PS Hlalele made a “unilateral decision to order the reevaluation of the tender” despite the 2016 High Court ruling that the tendering processes must proceed with Flash Construction, Yanjian Group and NM Khojane Construction as the preferred bidders.

The findings are contained in a report recently tabled before parliament by the portfolio committee’s chairperson, ‘Matsepo Ramakoae.

The portfolio committee was roped in to investigate allegations of corruption against officials in the Ministry of Public Works in connection with the M140 million senate building tender which has so far failed to take off since bids were opened in 2012.

The senate building, earmarked for construction at the Mpilo Hill in Maseru, is expected to cost the government M140 million which will be utilised in three phases of construction.

The senate has so far received M40 million for the first phase of construction which is already behind schedule as it was supposed to have started at the end of last year.

In the report tabled before parliament last week, Ms Ramakoae said it was public knowledge that the construction of the new senate building should have commenced by now.

She said that public funds had been continuously appropriated by parliament each financial year from 2012 but to date there was no physical structure or any signs of construction on the site of the proposed building.

The committee noted that in July 2012, the Ministry of Public Works and Transport issued invitations for bids for the construction of the senate building and Qing Jian, China Shanxi Construction, Flash Construction, Yan Jian Construction, N.M. Khojane Construction, Sigma Construction, LSP Construction and Brix/DevinfranJv all expressed interest.

The three Chinese-owned companies – Qing Jian Group, China Shanxi Construction and Yan Jian Construction – were expected to submit tender documents that had been translated in English and authenticated by the Chinese Embassy before applying.

But only Yan Jian Construction – which was later announced as the preferred bidder – followed the requirements by submitting translated and authenticated documents.

The committee found that the Ministry of Public Works’ Evaluation team took the two other Chinese companies’ documents to the Chinese Embassy for translation and authentication. But the embassy refused to authenticate and translate the documents on the grounds that it was the sole responsibility of each company to submit its documents for authentication and not that of the government.

Consequently the two firms were disqualified along with Sigma Construction for their failure to meet the bidding requirements.

Even though Yan Jian had announced as the preferred bidder it was not awarded the tender in 2016 because then the PS ordered that the project be re-tendered.

“The tender was not awarded to Yan Jian Company as per the previous Evaluation Team’s recommendations because the then Chief Accounting Officer made the instruction to re-tender the project. The entire tender was therefore cancelled,” Ms Ramakoae noted.

One of the bidding companies, Flash Construction, subsequently approached the High Court which ruled against the decision to re-tender the project on 13 May 2016.

Ms Ramakoae said following the court ruling, the then Principal Secretary informed the Senate and Yan Jian Construction that the contract had been awarded to the latter company.

However, Yan Jian did not proceed with the work after Mr Hlaele in apparent defiance of the High Court ruling, last year directed that all bids must be re-evaluated.

“Yan Jian has not been awarded the tender to date because the current PS (Mr Hlalele) issued a directive to re-evaluate all bids following his observation that there were some bidders who were unfairly disqualified. The new evaluation team…recommended Qing Jian Construction to be awarded the contract for the construction of the Senate, instead of Yan Jian which was previously recommended,” Ms Ramakoae said.

“Both Qing Jian Group and China Shanxi Construction were lawfully and rightfully disqualified. It has to be noted that the Court made a ruling that the project should not be subjected to a “re-tendering” process. In other words, there is no way that the project could be subjected to re-tendering without being contemptuous to the court decision or order.

“Contrary to the court order…and without any appeal application lodged before the court challenging the order, the PS Works (Mr Hlalele) made a unilateral decision to order the re-evaluation of the tender. This act is tantamount to a bare contempt of court emanating from a chief accounting officer who is expected to respect and observe the rule of law of the land.

“The portfolio committee… strongly recommends that the Ministry of Public Works and Transport should proceed with the decision made as per the court order and award the tender to the preferred bidder Yan Jian Construction…Deciding otherwise, would be a clear and straight forward violation and irregular interference to the tender process,” Ms Ramakoae said.

PS Hlalele previously told this publication that his actions were in accordance with the laws of the country which include the regulations that govern tender procedures.

“In executing all my tasks, I consult with my Minister (Prince Maliehe) and other actors. And in this senate tender, all operations were conducted within the confines of the laws of this country,” Mr Hlalele said.


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