High Court dismisses road tender application

The tender awarded to the joint venture Unik/Thohi to construct the multimillion N$ highway between Swakopmund and Walvis Bay was lawful and the company can continue its operations. Acting judge Collins Parker came to this conclusion in his judgement recently.

Parker gave judgement after the joint venture Chico/Octagon, which also had applied for the tender valued at close to N$1 billion, lodged an application in the High Court in September this year. The JV argued that the awarding of the tender was “unlawful” and should be reviewed and set aside. The respondents in the matter were the Roads Authority and a total of 23 other entities, 21 of which are companies which also tendered for the contract.
In his judgement, which was delivered on 8 December, acting judge Parker not only dismissed the application with costs, but also instructed the applicant to pay the costs of one instructing counsel and two instructed counsel. “The application has not established that the BTC (Board Tender Committee) acted against any of the requirements of just administrative action. I have also shown that the applicant failed to establish any common law ground of review that could vitiate the decision not to award the tender to the applicant,” Parker said.
In the heads of argument by Chico/Octagon the joint venture stated that it is the “preferred bidder”, having tendered not only the lowest price, but also due to the overall benefit of its tender to its local Namibian JV partner. Chico is a Chinese company having 70% stakes in the JV, while the Namibian partner, Octagon holds a 30% interest. “We highlight this feature because the respondent to whom the tender was unlawfully awarded is also a JV in which Unik (a Chinese company) holds a 90% interested and Thohi (a Namibian company) holds a mere 10% interest,” it stated in the arguments.
Furthermore it stated that the tender for the construction of the road was issued first on 29 January 2016. 23 tenders were received. “On the evaluation based on price the tender by Chico/Octagon ranked first, having offered the lowest price of N$891 million,” it states. The JV Unik/Thohi ranked third, having offered a price of N$958 million. “The price difference was a massive N$67 million, an amount which by all means accounts is substantial and bizarrely mischaracterized by the Board Tender Committee as very little difference,” it is argued.
“In sum, the BTC has considered the tenders, including the Tender Evaluation Committee (TEC) recommendations and has come to a decision point. The decision is lawful and valid,” Parker said.

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