TOP EMS SUCCESSFULLY STOPS GOVT’S E3.4M TENDER

MBABANE – TOP EMS (Pty) Ltd application to review the Ministry of Education and Training tender process was a success as the Independent Review Committee (IRC) ruled it should be set aside.

The Ministry of Education and Training intended to award Pride Oasis (Pty) Ltd and Ndou Investments the contract to supply and deliver equipment and chemicals for schools’ Science laboratories. This was after the ministry released a tender and several companies responded to their tender invitation and among them were TOP EMS (Pty) Ltd, Pride Oasis (Pty) Ltd and Ndou Investments.  

Pride Oasis was the applicant, the Ministry of Education and Training was the first respondent, Pride Oasis (Pty) Ltd the second respondent and Ndou Investments was the third respondent. Following an evaluation of the tender bids that were submitted, the first respondent on September 19, 2022 published a notice of intention to award a contract in respect of the tender issued.

Award

According to the notice, the proposed award of the procurement was in bifurcated lots. The first respondent intended to award the tender under Lot 1 to the second respondent being the lowest priced tenderer for Manzini and Lubombo schools. Under Lot 2 the second respondent also emerged victorious as the least priced tendererIRC Chairman Lucky Manyatsi and committee decided that the ministry’s intention to award Lot 1 of tender to the second respondent be set aside. The IRC also ruled that the second respondent be declared as a non-responsive tenderer to the first respondent’s tender.

The committee further ordered the ministry to implement the outcome of its evaluation of the tenderers in accordance with its technical and financial evaluation to the best evaluated tenderers therein.TOP EMS (Pty) Ltd was dissatisfied and aggrieved by the first respondent’s intention to award the tender to the second respondent.
The applicant’s dissatisfaction was premised on a ’contention that the second respondent was a non-responsive tenderer in terms of the requirements and eligibility to tender that were prescribed by the first respondent in the invitation to tender documents.

The IRC said an internal review application of the intention to award the tender was filed by the applicant before the controlling officer of the first respondent in compliance with the provisions of section 47 of the Public Procurement Act 2011.

Review

Manyatsi said this application was unsuccessful and prompted the Applicant to file the present review application. The applicant’s grounds for review were in two folds.  According to the verdict document by IRC, the applicant averred that the second respondent was a non-responsive tenderer in that the company did not possess and submit the mandatory VAT Registration Certificate which was one of the requisite documents to be submitted in terms of the tender documents.

On the other hand, the applicant contended that the second respondent was a relatively new company at the time of submission of the tenders having been incorporated some 10 months earlier. Yet the first respondent stipulated in the tender documents that eligibility to tender will be open to companies with an existence of a minimum three years who had it’s head office or branch in Eswatini.

It was submitted on behalf of applicant that the above shortcomings of the second respondent’s qualification to tender were admitted by the director of the second respondent during the opening of the tenders. “However and surprisingly the first respondent did not apply its own rules and instead overlooked these short comings by declaring the second respondent as a responsive tenderer and subsequently recommended the award of the tender under Lot 1 to her (second respondent),” mentionsedManyatsi.

Certificate

He added that the second respondent was eligible to tender because it was issued with a Tax clearance certificate dated the August 8, 2022 by Eswatini Revenue Service (ERS). The chairman said the Tax Clearance Certificate was exhibited in the respondent’s answering papers and that the argument on behalf of the first respondent was that ERS would not have issued the second respondent with this document if it was not eligible to participate in the tender process. “The first respondent admitted that the second respondent was only months old at the date of submission of the tenders.

However first respondent contended that from a business profile that was submitted by the second respondent it deduced and considered that the second respondent had a footprint all over the African continent spanning over 20 years providing similar goods to the ones sourced by the tender,” added the chairman.

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