Zimdef suffers new setback in court

11 Aug, 2022 - 00:08 0 Views
Zimdef suffers new setback in court

The Herald

Fidelis Munyoro Chief Court Reporter

THE Zimbabwe Manpower Development Fund (Zimdef) suffered another setback after its appeal against a High Court decision interdicting it from awarding a tender for SAP software application services to Tano Digital Solutions (Private) Limited was struck off the roll for non-compliance with court rules.

One of the losing bidders, Twenty Third Centuries Systems, had sought a provisional order blocking Zimdef from awarding a tender for SAP software application services to Tano Digital Solutions, pending determination of what one bidder called a restrictive and anti-competitive condition added by Zimdef, requiring bidders to hold an SAP licence.

Zimdef took this High Court order on appeal at the Supreme Court, seeking to overturn the lower court’s decision.

But the appeal panel of Justice Chinembiri Bhunu, Justice Joseph Musakwa and Justice Hlekani Mwayera, unanimously upheld a preliminary point raised by Twenty Third Centuries lawyer Advocate Method Ndhlovu that the matter was improperly before the court for want of compliance with the court rules, and struck the appeal off the roll.

The High Court order was an interim interdict which could not be appealed without leave of the court, Advocate Ndhlovu argued successfully. Zimdef lawyer Adv Lewis Uriri argued that there was no requirement for permission of the court to file such an appeal.

The judges did not agree with Adv Uriri’s submissions saying as long as the appeal was against an interim interdict there was a requirement to seek leave of the court to bring the appeal before the Supreme Court.

However, Zimdef last week lost the tender dispute more permanently after the High Court nullified the tender process on the grounds that the review panel looking into complaints by Twenty Third Centuries Systems was improperly set up.

Adv Ndhlovu said the tender to Tano Digital Solutions was clearly granted in circumstances that clear and peremptory provisions of the Public Procurement and Disposable of Public Assets Act had not been followed.

“The complaints lodged by Twenty Third Centuries Systems to the regulator were not properly before handled,” said Adv Ndlovu.

“The law requires that a review panel must be set to deal with complaints raised by the bidders in regard to granting or refusing of a tender. At law the review panel must be constituted by at least three members: one from the Law Society of Zimbabwe, a civil servant and an expert in the procurement industry.”

In this case, the panel was composed of three lawyers: Mr James Mutizwa, Mr Joe Mambara and Mr Moses Nkomo.

An expert in the procurement industry said a review of the process indicate that there are adequate challenge mechanisms in the Public Procurement and Disposal of Public Assets Act but these had not been applied. The outcome is showing two possibilities on the actors, PRAZ the regulator and Zimdef the procuring entity. One angle shows gross incompetence on both parties,” he said speaking on condition of anonymity.

“Zimdef demonstrated lack of skills to develop qualification criteria that were not unnecessarily stringent. The works are maintenance works on SAP system that only require the bidder to employ certified SAP technicians.

“Zimdef demonstrated lack of understanding of the difference between a vendor of SAP Value Added Services and general SAP maintenance services. SAP maintenance services do not include issuing new SAP licences and changing the SAP software fabric. Such maintenance only requires SAP-skilled technicians.

“On the other hand, PRAZ demonstrated lethargic oversight given its power specified in Section 7 of the Public Procurement Act. They have power to issue directions of a general nature. Schooling all procuring entities on the outcome of their engagement with SAP would have saved tax payers money that was wasted with these court processes.”

While it is known that the relationship soured between ultimate supplier SAP global and Twenty Third Centuries Systems following when Twenty Third Century failed to remit licence fees that had been collected from clients due to the ever-weakening local currency during the hyperinflation in the past, it was the duty of PRAZ to protect the local industry.

And the expert argues that there could be the possibility of syndicated corruption in public procurement.

He said the tender required bidders to have footprints in SAP support services. Given the monopolistic position that Twenty Third Centuries Systems occupy in SAP support services in both public and private sector, the expert wondered how the awarded bidder was awarded the tender when it itself lacked the qualifications sought.

“The total disregard of rules on the part of Zimdef is a cause of concern,” he said.

“The Public Procurement and Disposal of Public Assets Act suspends procurement proceedings when a challenge has been launched. To one’s surprise is that Zimdef proceeded to award the tender before the challenge was heard by the review panel of PRAZ. Surprisingly, PRAZ did nothing.

The expert said the PRAZ composition of the review panel also raised questions of potential corruption as no one on the panel could interpret the letter from SAP on the status of Twenty Third Centuries Systems in maintenance support services.

This, he said, the judgment also revealed that the internal remedies in the Public Procurement and Disposal of Public Assets Act apply on when there was a genuine error from the review panel.

Share This:

Sponsored Links