By Kelvin Chiringa
China State Engineering Construction is dissatisfied with a High Court ruling which set aside a N$211 million tender awarded to it by Namibia Airports Company for the upgrades of the Ondangwa airport. The Chinese owned company intends to appeal against the ruling made by Justice Thomas Masuku to the Supreme Court.
Justice Masuku ordered that any contract between the company and Namibia Airports Company as a result of the tender in question be set aside.
Former acting chief executive officer of the NAC, Lot Haifidi, argued that NAC’s procurement policy was flouted when the tender was awarded by the board.
He said the tender did not go through a competitive bidding process. China Engineering was further ordered to pay the costs of the application consequent upon the employment of one instructing and three instructed counsel.
The matter was removed from the court roll and regarded as finalised.
The Chinese-owned firm have hit back at Justice Masuku for having “erred on the law and on the facts in granting the orders”.
They argue that the court misdirected itself in finding that they did not properly raise the point of joinder of Tamer El Kalawi, Courage Silombela and Aurecon Consulting Engineers in its heads of arguments in that it should have been properly raised during case management.
El Kalawi, an Ex-NAC CEO and Silombela, an ex-head of the engineering department, are said to have flexed their muscles to have the tender go the way of the Chinese. “The court a quo failed to find that the respondent did not give a full explanation for its delay in instituting the proceedings,” the company claims in its court papers.
According to the documents, when NAC’s board was appointed on 1 September 2016, it began with the process of reviewing tenders awarded by the previous board and obtained legal advice on the legality of the awards made by the previous board.
As such, the company is claiming that in December 2016 when the NAC board obtained further legal advice, a period of six months had already lapsed.
“The respondent gave a wholly inadequate explanation for the period between the receipt of such further advice in December 2016 and March 10 2017, when the new board resolved that the respondent should institute legal proceedings in the high court to set aside the award. The respondents gave an inadequate explanation for the further eight months it took to implement this resolution by instituting the review on 7 December 2017,” China State argues.
The company disputes the court’s finding that even if the delay was to be found as unreasonable, this was a proper case for the court exercising its discretion in NAC’s favour.
They also argue that they suffered prejudice due to the delay.
“The appellant was on site when the tender was awarded on 12 June 2016. By the time the new board was appointed in September 2016, the appellant had taken various preparatory steps aimed at the implementation of the award, all of which entailed expenditure which the court a quo’s orders have rendered fruitless and wasteful,” the Chinese company argued.
China State claims to have paid N$20 million towards a performance guarantee submitted to NAC on August the 25th 2016.
“The court a quo erred in finding that that the applicant’s procurement policies were thrown in the dust bin and that the amount of the tender grew exponentially without any proper explanation. The court failed to find that the noncompliance with the procurement policy was a deviation, the respondent was entitled to deviate from the procurement policy to the extent that its board acted reasonably and justifiably,” the company further claims.
In addition, the court is said to have erred in failing to realise that the increase in the costs of the tender was clearly explained.
“An independent expert (Mr. Francois Le Roux) evaluated the Bill of Quantities and agreed with Aurecon that the costs were market-related and there was in fact no increase of the costs in 26% because, as indicated, various items on the Bill of Quantities were not costed,” they argue.