…as duty-free tender wrangle intensifies
Dufry International and Earth Retail, the joint venture that lost a hotly contested multimillion-dollar tender to run a duty-free shop at Hosea Kutako International Airport, wrote to Namibia Airports Company this week to demand that it nullifies the appointment of rival bidder Paragon Investment Holdings.
The JV partners, represented by Weder, Kauta and Hoveka is asking NAC to give it access to the record of all its tender decision-making processes that culminated in the award of the duty-free contract.
Dufry, the world’s biggest travel retail company operating in over 60 countries participated in the process with a local company called Earth Retail.
The decision to award the tender to Paragon was made public this week when NAC confirmed in a media report that it awarded the contract to Paragon.
The law firm representing Dufry and Earth Retail sent a letter to NAC’s acting CEO Lot Haifidi on Wednesday this week calling for the nullification of the award.
“We write to you as hereby do hold instructions to review and set aside your purported cancellation and collusion with Paragon. To that end, we write that you provide us before the close of business on Friday 26 October 2018 with a copy of the entire record of procurement of Operation and Management of the Duty Free Shop Bid No. NCS-LS/RFQ-56/2018, the minutes of the meeting which resolved that the bids are cancelled, the minutes of your meeting with Mr. Desmond Amunyela of Paragon Investment Holdings, the agreement between NAC and Paragon and your letter dated 10 October 2018,” wrote the legal team.
The tender was contested by six firms, namely Duffy& Earth Retail, Future Fresh 1990 Duty-Free, Paragon, Oshitayi Ventures, Sky View Investment and Cathral Investment.
The other bidders lost out when NAC cancelled the tender due to the renovations to be made at the airport which was necessitated by the security upgrades at the airport and the subsequent country security audit by the International Civil Aviation Authority(ICAO) scheduled for 18 November 2018.
Paragon had the tender for over a decade.
The law firm representing the JV partners is understood to be ready to interdict NAC if their demands are not met, and will rely on various laws and legal precedents to make their case.
Among these, the courts have previously ruled that unsuccessful tenderers have the right to seek temporary relief (for example, a postponement of an award decision) pending a review, as well as the right to access all documents used to adjudicate and award a public tender.
Despite NAC’s pronouncement this week that its board was satisfied with the integrity of all processes, the JV partners have more questions than answers.
The partners said they have on numerous occasions written to NAC to get an update on the process, but no response was forthcoming.
“We hold instructions that our clients on 15 October 2018 wrote to you and enquired when you will finalize the evaluation of the above tender. In response to the above you cancelled the tender and back dated your letter to the 10th October 2018. On 22 October 2018, our clients amongst others requested for reasons for your decision to cancel the above tender as required by Section 54 of the Procurement Act. To date hereof we record that you refuse and/or neglect to provide our clients with the reasons,” noted the JV partners.
The Namibian reported yesterday that Future Fresh 1990 through its lawyer Richard Metcalfe requested NAC to provide them with certain information or face a court challenge.
They also want to know why NAC cancelled the tender and who authorised the termination. Sources said NAC is completely dysfunctional and operated without a Charmain and substantive CEO. “Which private company in the world operate like that? The sort of response they gave clearly indicates that they ready to flaunt the Procurement Act. Ignorance is not an excuse in law. They are facing lawsuits all over the place because there’s a serious lack of competence and capacity. The issue around the downgrade is not a new thing, it’s been urgent for the past how many years and you can’t want to hide behind that in order to break the law,” said the source.
The recently appointed NAC Board met yesterday for the first time with Leake Hangala as Chairman.
The Patriot has it on good authority that this matter was discussed and referred to legal experts for their input.