The High Court has approved the government’s emergency procurement process for a veterinary cordon fence on Namibia’s southern border, while reprimanding the procurement board for its handling of the original tender.
The fence between South Africa and Namibia, intended to protect Namibia against a foot-and-mouth disease (FMD) outbreak, became the subject of a court dispute in September after the Central Procurement Board of Namibia (CPBN) suddenly changed contractors.
China Jiangxi International and Homefin were awarded the tender in August. On 7 September, CPBN cancelled the award and gave a new tender to China State Construction and Punchu Trading without explanation.
In the court, CPBN explained that there was a need to switch to an emergency procurement process because FMD outbreaks were moving closer to Namibia.
High Court judge Boas Usiku ruled yesterday that China State can continue building the fence.
“On the strength of the evidence that China State has commenced with the implementation of the contract and the evidence of escalating threat of the spread of foot-and-mouth disease, the balance of convenience does not favour the grant of the interim interdict,” Usiku said in his judgement.
China Jiangxi, in its application, had requested that the CPBN be “restrained and interdicted” from concluding the contract with China State. Similarly, it asked the High Court to stop the company’s activities in building the fence.
While Usiku ruled in favour of the procurement board and China State, he criticised the procurement board for cancelling the original procurement process without communicating the real reasons for doing so.
“The conduct of CPBN by not informing the relevant bidders of the real reasons for its intended cancellation of the bidding process leaves much to be desired,” Usiku said.
The CPBN has a responsibility to be transparent and provide clear and lawful reasons for its actions, he said.
“By informing the affected bidders that the bidding process is being cancelled because it ‘does not create or achieve the expected outcome’ is as good as not providing reasons at all,” Usiku said.
He said this creates unnecessary suspicion and with transparent communication, the court case might have been avoided.
Even though Usiku ruled in favour of the procurement board, he, therefore, declined to force China Jiangxi to pay the board’s legal fees.
“On account of the conduct described, I am not going to grant a cost order in favour of the successful party,” he said.
DELAYS
When completed, the fence will stretch along the Orange River for 155 kilometres, with an additional 30-kilometre stretch between the Kleine Mannase and Mata Mata border posts.
However, Namibia has already recorded outbreaks of FMD, with the first cases recorded in the ||Kharas region on 22 September. The virus has since spread to 15 farms and 127 cases have been recorded.
The contractor for the veterinary fence, intended to prevent the spread from South Africa, has changed at least twice this year.
Earlier this year, government-owned August 26 had been selected as the contractor for the fence. But agriculture, fisheries, water and land reform minister Inge Zaamwani questioned the company’s quote of N$179 million, after which the CPBN took over running the tender.
The procurement bidding process conducted by the CPBN before the emergency award attracted 23 bidders, with China State bidding N$122 million and China Jiangxi N$126 million.
