The Roads Authority (RA) has been ordered by the Supreme Court to pay the legal expenses of a company that took it to court over a tender, although the tender award was not cancelled in the process.
Supreme Court Acting Judge, Theo Frank, in concurrence with Judges of Appeal Sylvester Mainga and Elton Hoff directed the RA to pay the costs of one instructed and one instructing counsel to Chico/Octagon Joint Venture after the entity took it to court last year. Chico/Octagon is short for China Henan International Cooperation Group and Octagon Construction.
They tendered for the construction of a freeway between Walvis Bay and Swakopmund and was selected as the preferred bidder and recommended to get the contract, but instead the Roads Authority Board awarded the tender to UNIK/Thoni Joint Venture.
The reasons provided at the time was that Chico/Octagon was already awarded a contract for the Otjiwarongo Region and doubts were cast on the capability of the contractor to handle two large contracts at the same time.
Chico/Octagon then queried this decision with the RA and after this came to naught launched an application to the High Court to review and set aside the decision, along with an application for an urgent interdict preventing the implementation of the tender pending the review application.
They however later abandoned the urgent application after agreements were reached to expedite the review proceedings, despite neither the RA nor UNIK/Thoni giving any undertakings they would not implement the tender.
The review application was heard on September 7 last year and dismissed with costs on December 8 in the High Court and Chico/Octagon appealed the decision in the Supreme Court.
In the High Court judgement, Acting Judge Collins Parker said Chico/Octagon has not established that the RA acted against any of the requirements of just administrative action contemplated in Article 18 of the Namibian Constitution. In fact, he said, the applicant failed to establish any common law ground of review that could vitiate the decision not to award the tender to them.
He found that the RA Board has considered the tenders, including the Technical Evaluation Committee’s recommendations and has come to a decision and it is only when it is established that a decision is so unreasonable that no reasonable administrative body or official could ever come to it that the court can interfere.
That has not been so established, the judge said, and added that that in the circumstances the court was not entitled to set aside the decision complained of.
According to the Supreme Court, the initial order Chico/Octagon wanted – that the award be set aside and the contract awarded to them – is not realistic anymore, one year after the project has started. “One simply does not know what the impact of such will be on the project and the pricing,” Judge Frank said, and continued: “Certain costs, such as site establishment costs, will be duplicated.”
He further said the position on the relevant stakeholders, including employees and suppliers to UNIK/Thoni would devastating in addition of what it would do to the public purse, and that the interest of the general public should also be taken into consideration.
Judge Frank said UNIK/Thoni as an innocent party in the process became obliged to perform and has performed the services that it tendered for and is currently performing such services. The appeal judges concluded that the High Court should have found that the award of the tender was flawed as a fair process was not followed.