Council tender dispute spills into court 

Source: Council tender dispute spills into court | The Herald February 12, 2019

Adv Thabani Mpofu

Fidelis Munyoro Chief Court Reporter
Schoor Enterprises (Pvt) Ltd, a company that lost a tender for the supply of water purification chemicals to Harare City Council, is suing the Procurement Regulatory Authority of Zimbabwe for awarding the tender to Rockcastle (Pvt) Ltd, which it says was non-compliant.

The two companies competed in the tender process to supply the city with 24 000 tonnes of aluminium sulphate alongside six other bidders.

Rockcastle, which submitted the highest bid at $16,8 million, was declared the winner, while Schoor Enterprise, which had the lowest evaluated bid at $13,2 million was disqualified.

According to the submitted bids, Schoor Enterprises valued the product at $0,55 per kg, while Rockcastle valued the same product at $0,70 per kg, yet they were sourcing the product from the same supplier.

As a result, the awarding of the tender to Rockcastle cost ratepayers $3,6 million more than what Schoor would have been paid.

The disqualification of Schoor Enterprises resulted in the firm appealing at the Administrative Court to quash the decision of the Procurement Regulatory Authority.

Administrative Court judge Mr Herbert Mandeya last week presided over the appeal and reserved his ruling to a later date, after hearing arguments from all the parties’ counsel.

Schoor Enterprise, that was being represented by Advocate Thabani Mpofu, told the court that the authority was used to rubber stamp Harare City Council’s decision to award the tender to Rockcastle.

Adv Mpofu submitted that the authority’s decision to confirm the city’s choice was an act of irresponsibility in that it considered a specification that was never a requirement in the award of the contract to Rockcastle.

“This is an exercise of power by the regulatory authority that is as grossly unreasonable as it defied logic,” he argued.

“Both the first and second respondents showed gross deception and seemingly underhand dealing in this tender. They failed to adhere to the minimum standard of transparency required in public procurement process.”

Mr Target Shumba of the Attorney-General’s Office, who acted for PAZ, opposed the appeal.

He argued that Harare City Council was better placed to respond to why Schoor’s sample failed to meet the required specification.

“The second respondent had the capacity to determine whether or not the chemical components met their specification,” he said.

Mr Shumba said the authority, upon reviewing the matter, asked the city council to re-evaluate the tender in line with set tender requirement and recommend the award to a bidder that was compliant to the requirements.

Harare City lawyer Mr Charles Kwaramba argued that the tender was not awarded only on the basis of lowest compliant bidder, but on many other considerations.

“No misdirection has been shown regarding the manner in which the procurement regulatory authority exercised its direction,” he said. “It is submitted that in awarding the tender the first respondent properly applied its mind to the facts and the law.”

Mr Valentine Mhungu of Titan Law Chambers, who appeared for Rockcastle, concurred with the city council’s submissions on the matter.