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Fidelis Munyoro Chief Court Reporter
The State Procurement Board faces a contempt of court charge over non-compliance with a judgment compelling it to award a telecommunication firm that had won a tender to supply the Postal and Telecommunication Regulatory Authority of Zimbabwe (POTRAZ) with infrastructure equipment.
Potraz had floated a tender for the supply of passive telecoms infrastructure for the co-location of licensed operators’ equipment in undeserved areas in the country.
Nextcom Group (Pvt) Ltd emerged with a highest technical compliance score of 92,5 percent beating three others – Asevate Enterprises, ChinaConserve and LeadCom.
SPB, however, nullified the tender arguing all the bidders had failed to meet the tender requirements.

The other reason for cancelling the tender was that there were technical irregularities in the request for proposals regarding audited financial statements and tender sums.

Dissatisfied with the SPB decision to cancel the tender, NextCom, through its lawyer Mr Shakespear Karuwa, sued the procurement entity arguing that its decision was not justified and unlawful.

After hearing arguments from both parties’ lawyers Mr Karuwa and SPB represented by Ms Garise-Nheta from the Attorney-General’s Office, the Administrative Court ruled in favour of NextCom.

Three months after the ruling, SPB has not complied with the court order.
Nextcom dragged the Tender Board to court for defying the court ruling, which paved way for the bidder to proceed to the financial stage of the tender.
The application was filed on Friday last week at the Administrative Court.

NextCom director Mr Lawrence Pinto, who deposed an affidavit, said they had no option but to seek the court’s intervention to make SPB comply with the judgment.
“I accordingly pray that the respondent be sanctioned in terms of this . . . court’s rules for being in contempt  of this court’s judgment,” said Mr Pinto.

In his ruling Justice Herbert Mandeya slammed the SPB for “shifting its blame on bidders” after it bungled the process.
Bidders, he said, were simply required to meet the requirements set out in the request for proposals.

“It is accordingly not fair to cancel a tender for an irregularity created by the respondent and the procuring entity,” said Justice Mandeya.
“The court is not satisfied that such a self-created irregularity is justification for putting bidders to great expense in trying to meet all the tender requirements.

“After all the public is not served properly if goods and services are not all provided because those entrusted with procuring those goods and services cover up their own mistakes by shifting blame to bidders.”

Justice Mandeya also noted that when the Tender Board disqualified the bidders, it fell into the error of failing to distinguish between mandatory technical requirements and mere technical requirements.

He said since the tender was highly technical chances were high for the Tender Board to err.
Through the SPB, Potraz last floated the tender, which closed on September 27 last year.

Two earlier tenders floated for the same purpose, one on February 7 2013 and another floated on July11 2013 were annulled by the procurement board because none of the  bidders had met tender requirements.

The September 2013 tender was cancelled for the same reason and also for technical irregularities in the request for proposals regarding audited financial statements and tender sums.