Lekhetho Ntsukunyane
A JOINT venture company seeking to block South African firm, Bidvest Fleet Company’s contract with the government has filed an urgent application in the Commercial Court in light of revelations it was the preferred bidder of a tender evaluation report.
The joint venture company, comprising Fleet Service Lesotho (Pty) Ltd and Lebelonyane Fleet Solutions (Pty) Ltd, wants the court to issue an order for the respondents to show cause why they cannot be “interdicted and restrained” from contracting Bidvest for the management of the government’s fleet.
The respondents, as cited by the joint venture firm, are the Ministry of Finance, its procurement unit, Attorney-General Tšokolo Makhethe, Bidvest Fleet Services, Avis Fleet Service and Fleetmatics respectively.
In a voluminous application filed on Friday by the joint venture company’s lawyer, Advocate Tembo Lesupi, the firm wants the ministry and its procurement unit to be ordered to avail to the court’s registrar, “within a period to be determined by the honourable court” a full record of all meetings, sittings and or proceedings that resulted in the decision to award the contract Bidvest.
The joint venture company also wants the ministry and the procurement unit to be ordered to avail a copy of the statement, “if any”, justifying the award of the contract “without following an open tender process”.
The respondents, Advocate Lesupi notes, should also state why, pending finalisation of the matter, the government should not be ordered to continue with a short-term agreement with Bidvest “or any other person for provision of fleet services”.
For substantive relief, the joint venture wants the government’s decision to engage Bidvest “be reviewed and set aside” and for the contract to be declared “null and void and of no force and effect.”
Lebelonyane also wants the government’s decision to cancel the tender process “reviewed and set aside” and for the ministry to “continue with and finalize the adjudication process initiated in terms of tender number 7 2015/2016” in which it was deemed the preferred bidder.
“In this regard, the first and second respondents be directed within one month of the date of the order to submit the report and recommendations of the evaluation team in tender number 7/2015-2016 to the tender panel for consideration and award of the procurement contract.”
Alternatively, the joint venture wants the court to direct the ministry to invite tenders for the provision of computerised fleet management services to the government “within one month of the date of the order”.
Advocate Lesupi argues the matter warrants urgent redress for the following reasons:
“The fourth respondent (Bidvest) has been awarded a contract by the government of Lesotho without following lawful procurement procedures. The applicant has a direct and substantial interest in the nature of the contract in that it provides the same services under the contract and has thus been prejudiced in not being given an opportunity to openly compete for the work;
“The applicant was the preferred bidder under tender notice number 7/2015-2016 and the said tender has been unlawfully cancelled without justification and to the benefit of the fourth respondent; it will be prejudicial to the applicant and not in the interests of justice if the respondents, in particular the first and fourth respondents are not interdicted from implementing a contract that is pertinently unlawful.”
In her founding affidavit, the joint venture company’s director Lipalesa Ramphi submits Bidvest had originally been awarded a six month contract to run the government fleet from 1 October 2015 to 31 March 2016 after the expiry of the government’s fleet management contract with Avis.
Because of that short-term deal, Ms Ramphi notes, the government had promised to exclude Bidvest from any new tender to find a new long-term operator to replace Avis.
“Following the engagement of the fourth respondent (Bidvest), the government, through the Minister of Finance (Dr ‘Mamphono Khaketla) expressly stated that steps would be taken to expeditiously begin a process to invite tenders for the provision of government fleet services and impressed on all interested local businesses to be ready to submit their proposals,” asserts Ms Ramphi.
“The Minister of Finance had also stated publicly that the fourth respondent would be barred from contesting for the provision and management of fleet services tender once the tender was issued, or its bid would not be considered.
“The Minister of Finance made an undertaking that the process of inviting bids and concluding a contract with the preferred bidder would be completed within six months, starting from October 2015.”
However, Dr Khaketla later cancelled the tender process, opting to instead extend the original six month contract with Bidvest into a new four-year contract.
The firm goes on to accuse Dr Khaketla of using Thabo Napo “who is well known to have a close personal relationship with the current Minister of Finance” to solicit for a M4 million bribe.
Ms Ramphi alleges Mr Napo called some of Lebelonyane’s business associates to a meeting at Dr Khaketla’s residence.
“Present at the meeting were Letsatsi Mabona, Matsikane Khali, Kereke Moteletsane and Lebohang Maketa, who are all business associates of the Applicants. Dr Mamphono Khaketla was also present in the meeting,” she says.
“In that meeting Mr Thabo Napo suggested to our said business associates that they should impress upon the management of the first applicant to soften the Minister of Finance by giving her an amount of at least M4 000 000-00 in order for the 1st Applicant to be awarded Tender Number 7/2015-2016. He went further and told our said business associates that his partner, that is Dr Khaketla, could not just make us billionaires without getting something in return.”
Ms Ramphi continues: “One would expect the Minister to dismiss these suggestions by Mr Napo and put him to order. Instead, Dr Khaketla told our business associates that indeed she and her partner Mr Napo must benefit from the award of the tender and if the management of the 1st Applicant was not prepared to do as suggested by Mr Napo, then we may as well forget about ever getting the contract under Tender Number 7/2015-2016.”
She further notes they refused to pay the alleged bribe “due to the fact that we genuinely and strongly believed in our bid”.
“In the circumstances, it will not be far-fetched or even malicious to suspect that the decision to award the contract to the fourth respondent (Bidvest) was made because the latter agreed to offer Dr Khaketla more or less the amount that had been suggested to us,” Ms Ramphi asserts.
Meanwhile, the Lebelonyane directors who fled Lesotho along with Democratic Congress youth league officials after alleging Dr Khaketla had instructed the police to “arrest and torture us to death” returned home last Monday.