The Supreme Court has dismissed an appeal by the Central Procurement Board of Namibia and the education ministry, invalidating a multimillion-dollar tender for government school hostel food.
The top court yesterday dismissed the appeal by the procurement board (CPBN) and the Ministry of Education, Innovation,
Youth, Sport, Arts and Culture, upholding a High Court decision that set aside the multimillion-dollar procurement process for supplying food to government school hostels across Namibia.
In the Supreme Court’s judgment, deputy chief justice Petrus Damaseb, with chief justice Peter Shivute and acting judge of appeal Theo Frank concurring, found that the procurement process had continued after the validity period of the bids had expired and that the CPBN no longer had the legal authority to proceed.
The tender was for the supply and delivery of food to government school hostels for three years.
Bids closed on 9 September 2024, with the tender documents providing for a 180-day validity period, which meant the bids expired on 8 March 2025.
However, the CPBN issued its notice of selection of award on 2 April 2025, followed by final notices of award in July.
The court found that the board had therefore acted unlawfully after the bids had already expired.
The dispute arose after Pamo Trading Enterprises, one of the unsuccessful bidders, challenged its exclusion from the tender.
Its bid had been declared non-responsive because one supporting document was in Afrikaans and had not been accompanied by an English translation.
While Pamo’s reconsideration and review proceedings were under way, the CPBN asked bidders to consent to an extension of the bid validity period.
No bidder responded in writing.
The board nevertheless proceeded with the procurement process and issued the final awards in July 2025.
Pamo subsequently approached the High Court, arguing that the tender had already lapsed and that the attempted extension was invalid.
The High Court agreed and set aside the procurement decisions.
The CPBN and the ministry appealed, arguing among other things that the Public Procurement Act should be interpreted as providing for a maximum of 180 business days rather than 180 calendar days.
The Supreme Court rejected that argument.
Damaseb said section 49 of the Public Procurement Act did not itself impose a 180 business day validity period on every tender, but instead gave the board discretion to determine the applicable period, provided it remained within the statutory maximum.
Once the validity period had expired without a lawful extension, the court found, there were no valid bids left for the board to accept.
“The parliament created no third alternative permitting the board to continue after expiry without complying with the prescribed mechanism,” Damaseb said.
The CPBN and ministry had also argued that setting aside the tender could disrupt the supply of food to pupils staying in government hostels and result in additional costs and administrative difficulties.
The Supreme Court acknowledged the importance of ensuring that pupils continued to receive food, but found that the evidence did not demonstrate that cancelling the procurement would inevitably interrupt supplies.
“Temporary procurement arrangements had previously been used when long-term procurement was delayed or litigated,” Damaseb remarked.
He added that there was no evidence that lawful interim arrangements were unavailable.
The court dismissed the appeal and ordered the appellants to pay Pamo Trading Enterprises’ legal costs.
