A HIGH Court judge has ordered the Central Procurement Board of Namibia (CPBN) to include a Namibian businessman in the bidding process of a N$100 million tender which involved alleged conflict of interest and collusion.
The Namibian reported last month that the board disqualified three companies controlled by three brothers from bidding for contracts valued at N$382 million, to supply maize meal and protein to the education ministry.
The brothers are Herman Nekomba, Erastus Nekomba and Jacob Nekomba.
The CPBN disqualified the trio for both tenders, for alleged unfair advantage over other bidders and over possible collusion and conflicts of interest.
Judge Eileen Rakow delivered her judgment two weeks ago.
Herman, through his company Stream Two, dragged the board to court last month to challenge his exclusion from the N$100 million tender for the supply of protein, sugar, salt and transport for the education ministry.
Herman was represented by lawyer Sisa Namandje.
The High Court subsequently agreed with their argument in court.
“The bid evaluation committee and the CPBN are directed to proceed and consider the applicant’s bid (Herman’s Stream Two Properties CC), together with others from stage one to six of the bid evaluation committee, and to make a fresh decision regarding the allocation of the bids thereafter,” said the judge.
Rakow said when the tender board reviewed bids, Herman’s company was not taken through all stages.
“It is clear that the applicant was disqualified during the initial evaluation in stage 1, and therefore not subjected to the further stages that deal with eligibility evaluation, compulsory disclosure, financial information checklist, technical scores and financial evaluation.
The judge drew attention to the review panel, which “was not entitled to direct the matter back to the bid evaluation committee and the tender board” to determine whether there is a conflict of interest between the brothers.
The brothers were disqualified on the basis that they have the same surname, physical address and postal addresses.
“The tender board and its evaluation committee cannot now be allowed a second opportunity to again scrutinise the bids, with no new information being provided to them, except for the concerns raised by the review panel.
“They remain bound to the reasons already provided and cannot, by way of the decision of the review panel, be given a second bite at the cherry,” the judge added.
The tender was advertised in October 2021, attracting 32 bidders.
It was awarded to eight companies: Ouyamba Investment CC, Magnetize Investment CC, Bonsec Investment CC, Ndakalimwe Investments CC, Padana Investments CC, Tafina Trading CC, B&H Maintenance Services CC and Sash Trading and Earthworks CC.
The former tender board chairperson, Patrick Swartz, argued last month that there was a conflict of interest between the brothers.
“This is regarded to be conflict of interest . . . which is to have a relationship with each other, directly, through common third parties, that puts them in a position to have access to information or influence on the bid of another bidder or influence of the purchases regarding this bidding,” Swartz said.
Tender board spokesperson Johanna Kambala told The Namibian this week that the tender board will implement the court’s decision.
“The tender board will not in any way divest from the court order. It will strictly implement the court order as directed,” Kambala said.
She said this decision will not affect the notice of award it issued to the bidders they selected last month.
“The board has only issued a notice of selection of award. The board has not entered into any contract with any bidder for the supply of protein, sugar, salt and transportation to the warehouses,” Kambala said.
“The court did not cancel the bid and therefore there is no basis to talk about starting the process afresh, which implies cancelling the bidding process and advertising from the start,” Kambala added.
Meanwhile, Herman told The Namibian this week that the court’s judgement did not only vindicate their rights to be treated fairly, lawfully and reasonably, but it also vindicates the rule of law.
“I now hope that CPBN will fairly and lawfully take a decision in accordance with the High Court’s reasoning and directives,” he said.
The other two brothers – Jacob and Erastus – said justice has been served and prevailed in the matter.
