Source: PRAZ corners Chivayo’s Intratrek | The Herald March 7, 2019
The Procurement Regulatory Authority of Zimbabwe (PRAZ) has written to Intratrek Zimbabwe — that is locked in a contractual dispute with Zimbabwe Power Company (ZPC) – emphasising the point that it had statutory powers to demand explanation on all matters pertaining to the Gwanda solar project.
This comes after Intratrek had initially declined to release details of (and any variations to) its engineering, procurement and construction (EPC) contract with ZPC, attendant performance reports, interim payment certificates and any contract variations.
President Mnangagwa has on many occasions expressed his displeasure on the manner the Gwanda solar project was progressing.
PRAZ chief executive Nyasha Chizu said in the letter to Intratrek, dated February 11, 2019 that the authority had legal authority to require any procuring public entity or bidder to produce or disclose any information, document, record of report on procurement, contracts, disposals, contract breaches or wrongdoing.
Intratrek won the contract to build the 100-megawatt solar power station in 2015, but had a dispute with ZPC in 2018 after the power utility claimed the contract between the parties had lapsed by expiration of time because Intratrek failed to fulfil conditions precedent with the agreed time period.
However, Intratrek disputed the power utility’s claim and filed a lawsuit against ZPC at the High Court, which ruled in the contractor’s favour and ordered the brawling parties to sit down and agree on the best way forward regarding the project within 60 days.
In his argument – which came after Intratrek had objected to demands by PRAZ to avail details of the contract and variations done later, progress reports and payments thus far — Mr Chizu declared that PRAZ had the mandate to regulate and monitor procurement both within procuring entities and among bidders.
“It therefore follows from the aforementioned that PRAZ is lawfully entitled to request the information which it requested.
“We wish to further point out that the authority has NO interest other than that which is in line with the statutory provisions that provide for the mandate and powers of the authority,” Mr Chizu said.
This was in response to Intratrek’s initial letter to the correspondence by PRAZ in December last year which said since it was a private entity wholly owned by private persons, PRAZ had no right statutory or otherwise to regulate or monitor its affairs.
“The fact that Intratrek is contracted to implement or execute a project on behalf of a procuring entity does not presuppose that statutory authority of PRAZ to monitor the activities of a procuring entity is extended to Intratrek,” the company said.
Intratrek added that it was therefore improper for PRAZ to request information, as it did, pertaining to the Gwanda solar project and contract.
Further, Intratrek said after it signed the contract for the Gwanda solar project in 2015, all relevant documents were furnished and submitted to the then State Procurement Board (SPB), which has since mutated and reconstituted into PRAZ.
The firm argued therefore that PRAZ was already in possession of the information it requested and if it required these details, it should refer to the documentation that was already within its custody.
However, Mr Chizu pointed out that PRAZ was aware that Intratrek was a privately owned company; a fact it recognised and respected, but stressed the point that once the company participated in public tender, it became liable to PRAZ scrutiny.
Given such scenario the PRAZ chief executive said Intratrek was not excluded from being bound by public procurement laws so long as the entity itself was participating in the public tenders.
“Pertaining to the authority’s request for interim payment certificates, performance reports and details of the contract variation and contract management for the Gwanda solar power project, we reiterate that the authority still requires that information.”
Intratrek had also claimed that following the High Court judgment of December 13, 2018, which declared the contract with ZPC to be valid, enforceable and contractually binding, it could not disclose confidential information of the Gwanda contract.
In response Mr Chizu, however, said in requesting the information on the Gwanda solar project, PRAZ was not attempting to revisit the recent High Court judgment, saying this was “far from it”.
He stressed the point that the existence of the court judgment did not preclude PRAZ from executing its mandate in terms of the law nor was its demand defiance or contempt of the High Court order.
Further, he said the court judgment did not preclude any aggrieved party in the matter to seek enforcement of its rights or seek intervention in the matter so long as such was within the confines of the law.
Intratrek had claimed the High Court order represented the full legal state of affairs regarding the EPC contract and final, provided the other party did not appeal, which had not happened to date and as such the court judgment remained extant.
“With greatest respect, we consider the sudden interest, which borders on interference by PRAZ in this matter after determination by the High Court to be suspicious and suggestive of contempt of the High Court’s ruling,” Intratrek wrote.
However, in its latest correspondence responding to PRAZ’s second later of demand, which further clarified the authority’s mandate and jurisprudence, Intratrek apologised for delaying its response and submission to the demand to avail the requested information.
“The submissions by PRAZ are without doubt compelling and we therefore do not stand opposed to submitting to yourselves the information, as requested,” said Intratrek Zimbabwe in its correspondence, which is dated February 28, 2019.