MPAKENI DAM TENDER: ITALIAN COMPANY TAKES ESWADE TO COURT

MBABANE - A row over the awarding of a tender in respect of construction supervision services for Mpakeni Dam and associated works, including the main access road, has ensued.

This comes after the Eswatini Water and Agricultural Development Enterprise (ESWADE) reportedly awarded a 10- month contract to PG Consulting Engineers and Nippom Koei in association with ED Simelane and Associated. Dissatisfied with ESWADE’s decision, Studio Ing G Pietrangeli S.L Consulting Engineers (SP), a company from Italy, has filed an urgent application at the High Court, where it is seeking an order reviewing and setting aside the former’s decision of awarding the temporary contract. The company (Studio Ing G Pietrangeli S.L Consulting Engineers) contended that the temporary decision was blatantly invalid and unlawful. It was further its submission that, this was surprising if regard had to be taken to ESWADE’s conduct throughout the tender process.

Registered

Studio Ing G Pietrangeli S.L Consulting Engineers (SP) is a private company duly registered in accordance with the laws of Italy, having a registered office at Via Cicerone 28, Rome, Italy.  It is an engineering firm that provides services in relation to inter alia, dams hydroelectric power plants, hydraulic projects and power transmission lines. Respondents in the matter are ESWADE, Knight Piesold Swaziland and Dlamini Gibb Consortium, PG Consulting Engineers, Nippom Koei in association with ED Simelane and associated, Eswatini Public Procurement Regulatory Agency, Eswatini Public Procurement Agency’s Independent Committee, chairperson of ESWADE Tender Board and the chairperson of the Eswatini Tender Board. The applicant (Studio Ing G Pietrangeli S.L Consulting) wants the High Court to interdict and restrain ESWADE from awarding the tender to the third and fourth respondents (PG Consulting Engineers and Nippom Koei in association with ED Simelane and associated).

Application

In his founding affidavit, the applicant’s director, Giorgio Pietrangeli, brought it to the attention of the court that the application related to Tender No. 0610 for the construction supervision for Mpakeni Dam and associated works, including main access road, that was issued by ESWADE in October 2022. He told the court that SP, the consortium and an entity known as Nippom Koei and Suyapi in association with ZMK, were the only entities that subsequently submitted bids and reached the advanced stages of the tender procurement process. He submitted that after the completion of the evaluation process in respect of the tender, ESWADE took and communicated two decisions; a decision to reject the bid submitted by SP, in response to the tender and a decision to award a contract in terms of the consortium. According to the deponent (Pietrangeli), SP subsequently formed the view that the first and second impugned decisions were invalid and irrational and initiated review proceedings in terms of Section 47 of the Act.  

Submitted

He brought it to the attention of the court that ESWADE’s chief executive officer(CEO) allegedly dismissed SP’s administrative review in terms of Section 47 of the Act. Pietrangeli informed the court that SP prepared an administrative review application to be submitted to Eswatini Public Procurement Regulatory Agency (ESPPRA), to inter alia; have the first and second impugned decisions reviewed and set aside and substituted with a decision awarding the tender to SP. “A day before the first administrative review application was submitted to ESPPRA by SP, ESWADE communicated a decision to reject all the bids in respect of the tender (including SP’s bid) and to cancel the tender in its entirety, purportedly in terms of Clause 27(2) (f) of the Act,” contended Pietrangeli.  He averred that, SP formed the view that the cancellation decision was invalid and unlawful, as the requirements set out in Clauses 27(2) were allegedly not met and the cancellation decision was only taken by ESWADE in  order to render the first administrative review application nugatory and moot.

He alleged that ESWADE also did this to avoid the consequences that would flow from the reviewing and setting aside and/or annulment of the first and second impugned decisions.
“Accordingly, SP filed the first administrative review application with ESPPRA and subsequently updated its  papers to include grounds and order to have the cancellation decision reviewed and set aside and/or annulled and to have the impugned decision and the cancellation decision substituted with an order awarding the tender to SP,” submitted the director.   
He went on to submit that, after the exchange of various affidavits between SP and ESWADE, the first administrative review application was set down for hearing before the ESPPRA Independent Review Commission (IRC) on July 4, 2023. 

Pietrangeli claimed that, he was advised by SP’s legal representatives that at the hearing of the first administrative review application before the IRC on July 4, 2023, ESWADE’s legal representative duly and sensibly conceded the invalidity and unlawfulness of the first and second impugned decisions, with the result that SP’s relief for the reviewing and setting aside and/or annulment of those decisions was no longer opposed.  The deponent further highlighted that he was advised by SP’s legal representatives that the issue that remained controversial and were argued by the parties, were the validity of the cancellation decision and remedy, particularly the substitution order sought by SP. “At the end of the hearing, the chairperson of the IRC indicated that the IRC would deliver its ruling in due course.  At the time I deposed to this affidavit, the IRC had not delivered the ruling. However, considering the exigency with which the administrative review application is intended to be concluded in terms of the Act. SP expects the IRC to deliver the anticipated ruling within the few weeks at least,” he argued. He argued that the court application was necessitated by the fact that SP had now learnt that ESWADE had taken a decision to award a 10-month contract to PG Consulting and the joint venture, in respect of a portion of the scope of work contemplated in the tender.

Awarded

The matter is pending in court and appearing for the applicant is senior lawyer Kenneth Motsa of Robinson Bertram. The main tender for the construction of the dam was awarded to Sakhalive JV. Sakhalive JV is a joint venture company established by two giant construction firms based in China that is, Yellow River Co. LTD and Sinohydro Bureau 3 Co. LTD.
The contract is valued at about E3 billion (US$136 million) and the construction period is 51 months. The scope of the project comprises of the construction of a 52 metre-high clay core rockfill embankment dam and associated works including a 15km main access road. The project will contribute to local infrastructure, socio-economic and agricultural development.

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