RA victorious as court overturns public procurement decision – Windhoek Observer

Hertta-Maria Amutenja

The Windhoek High Court last week overturned a decision by the Public Procurement Review Panel, providing a triumph for the Roads Authority (RA) in a case involving tender bids for routine maintenance of bitumen roads across five towns in Namibia.

According to the court documents filed at the Windhoek High Court, RA advertised tenders in September 2021, inviting bids for the maintenance of bitumen roads in Windhoek, Keetmanshoop, Otjiwarongo, Oshakati and Rundu.

Following the submission of bids, Lau Tom Construction cc, Polladium Civil Engineering, Ering Quarry & Civil Works and Khan Trading cc found their bids rejected for various reasons.

Unhappy with the explanations provided by the RA, the companies launched a review application before the Public Procurement Review Panel.

The twist in the tale emerged when the RA learned about the review application filed by Palladium Civil Engineering only on the day of the hearing. The Panel’s decision, delivered in June 2022, found, among other things, that the bids exceeded the prescribed threshold, leading to the termination of the procurement proceedings.

However, Judge Nate Ndauendapo addressed key issues raised in the review application. Firstly, the court dismissed a point of non-joinder raised by Lau Tom Construction, stating that unsuccessful bidders had waived their right to be joined in a subsequent review application by not participating earlier.

The crux of the matter revolved around the Review panel’s decision regarding the threshold and the subsequent termination of the procurement proceedings.

Ndauendapo ruled that the Panel had acted ultra vires its powers by determining the threshold mero motu (on its own initiative) and set aside this decision. The court declared that RA’s outcome of the bidding evaluation process was valid.

“It is declared that the applicant’s outcome of the bidding evaluation process as indicated in the notice for selection of award issued on 24 May 2022 is valid. The applicant is hereby directed and permitted to proceed with the concluding and signing of procurement contracts with the successful bidders,” said Ndauendapo.

On the non-joinder issue, legal counsel for the third respondent commented, “While we respect the court’s decision, we believe the unsuccessful bidders should have had the opportunity to present their case, ensuring a more comprehensive review process.”