Source: Chinese firms in tender row | The Herald October 19, 2019
Fidelis Munyoro Chief Court Reporter
A Chinese construction company is objecting to the disqualification of its bid and award of a dam construction tender to its rival company, amid claims of underhand dealings on the part of the procurement entity. China Jiangxi International and Technical Co-operation Co. Ltd won a tender for the construction of the US$171 million Silverstroom Dam in Mashonaland Central province. The decision by the procurement entity was communicated to Jiangxi on September 11, this year.
However, this was later reversed and another Chinese company, China Nanchang Engineering (Pvt) Ltd, was declared the winner.
The Silverstroom Dam construction is part of Government’s mega US$2,5 billion water infrastructure development investment.
The investment comprises dam constructions, irrigation development and power generation through the construction of mini-hydro plants in the country’s identified 15 dams as it seeks to cope with challenges of rapid urban population growth, climate change and the demands of a modernised society.
Following its disqualification, Jiangxi contested the procurement entity’s decision and the matter is still awaiting determination.
Despite objection to disqualification and challenging the procurement entity decision, the Ministry of Lands, Agriculture, Water, Climate and Rural Resettlement proceeded with handover processes of the tender to Nanchang winner.
This sparked a fierce legal battle culminating in Jiangxi, through its lawyer, Mr Tapson Dzvetero of Antonio and Dzvetero, scurrying to the High Court for intervention to freeze the processes until the dispute is finalised.
In its application, Jiangxi cited Lands secretary Mr Ringson Chitsiko, Minister Perrance Shiri, Zimbabwe Water Authority (Zinwa), Nanchang and Pocurement Regulation Authority of Zimbabwe (Praz) as respondents.
Justice Tawanda Chitapi heard the urgent application.
Mr Dzvetero argued that his client’s contention is that its bid was held to be compliant in all aspects and the most cost effective by the Praz.
“However, in circumstances which point at bias against the applicant (Jiangxi) that decision was changed, albeit unprocedurally and the fourth respondent (Nanchang) was awarded the bid,” he argued.
The lawyer said Jiangxi lodged its challenge with the ministry within the prescribed 14 days from the date that it was notified of the rejection of its bid.
The challenge is yet to be determined by the ministry. The effect of this status of affairs is to freeze the procurement proceedings.
“I verily believe that the decision of the respondents to continue with the procurement proceedings while the applicant has initiated challenge proceedings which remain undetermined and in the face of statutory provisions which peremptorily provide for the suspension of procurement proceedings in such circumstances is without any legal basis and is unlawful,” he argued.
Zinwa is tasked with implementation of the multi-billion-dollar water infrastructure development across the country’s provinces.
Through its lawyer, Mr Jonasi Dondo, the water board asked the court to throw out the application saying the challenge to the decision of the procurement entity was done out of time.
“This, therefore, means no challenge is before the court,” he said. “Basically the procurement law does not allow condonation of late filing challenge to procurement proceedings.”
The ministry and Praz also want the urgent application dismissed for want of merit, arguing that Jiangxi did not qualify on the basis of lack of eligibility.
In terms of the bid requirements laid down in the standard bidding documents, requirements for eligibility included the submission of documents which are characteristic of local companies.
Jiangxi is incorporated in China and submitted its bid as an international company.
Its subsidiary company is incorporated and registered in Zimbabwe.