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Fidelis Munyoro Chief Court Reporter
The Zimbabwe Manpower Development Fund (Zimdef)’s award to Tano Digital Solutions for SAP software after a tender was floated has been nullified by the High Court on the grounds that the review panel looking into complaints by another bidder was improperly set up.
Twenty Third Century Systems (TTCS), had originally sought a review after Zimdef, who had been using TTCS since 2015, in February last year demanded that all bidders had to be certified. On December 9 last year they awarded the contract to Tano. After the complaint, the review panel was set up but dismissed TTCS’s complaint. However, TTCS has now won the High Court order declaring the panel wrongly set up.
TTCS argued in the High Court that since the panel was improperly constituted and as such it could not make a lawful decision on the dispute between the parties.
It also argued that the decision of the Procurement Regulatory Authority of Zimbabwe in appointing members of the review panel did not consider expert illumination given on the matter.
Further, TTCS argued that the PRAZ decision to constitute the review panel was made without hearing parties in terms of the law and as such that decision was arbitrary and void.
In its counter-argument, Zimdef sought to thwart the litigation, arguing that there was no application for review before the panel because a letter submitted by TTCS raising complaints did not qualify as an application in terms of the Public Procurement Regulations.
Zimdef went on to argue that the contract was awarded on December 9 2021 when there was no valid challenge before it.
Ruling on the matter, Justice Webster Chinamora found favour in the submissions made by TTCS lawyer Advocate Method Gatsheni Ndlovu who amply proved in what way the composition was non-compliant with the law.
The judge also noted that the Zimdef response to the TTCS letter on record and in the founding affidavit woefully fell short of illuminating how each panel member qualified for the appointment to the panel under the Procurement Act.
PRAZ could not dispute that it breached the law when it failed to place advertisements asking for eligible persons to be included on the list of prospective panelists, in spite of this being a mandatory requirement.
To this end, Justice Chinamora was unable to disagree with the TTCS legal counsel that the review panel was not properly constituted, thereby making its decision on 22 February 2022 a nullity.
The court did not agree with Advocate Lewis Uriri, that the preliminary points raised by TTCS had no merit and should be thrown out.
He sought to allude the judge to the court’s rule which he said required the chairman of the review panel to be served with an application for review of his or her decision. He said the failure to join the chairman in the proceedings meant that there was no application before the court, which the court rejected.
Zimdef also argued that the procurement legislation did not provide for the suspension of the tender process pending a decision on the challenge saying the Act provided sufficient remedies to an aggrieved bidder.
Having made the decision to uphold the preliminary point raised by TTCS’ legal counsel, the judge found it unnecessary to delve into the merits of the dispute and quashed the review panel decision with costs of suit.
This meant that the original award to Tano Digital Solutions was also quashed.
TTCS had been providing the service since 2015, but when Zimdef published a notice in February last year calling for an informal tender for the provision of an SAP software application services, it put a clause that sought to bar most potential bidders from being considered for the tender.
The bidding companies had to be certified to carry out the service.
This prompted TTCS to complain to PRAZ and challenged the “anti-competitive” clause in the tender that shut out other potential bidders.
Though TTCS was not SAP certified it could render the services required by the Zimdef.
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