Dissatisfied bidder for conflict-ridden fleet management tender has approached the High Court to nullify a contract alleged to have been awarded unlawfully to Fleet Africa/Silverstone—a joined venture said to have skipped tendering processes.
Fleeters Holdings (Pty) LTD has filed an urgent application seeking the High Court to interdict and ultimately nullify the alleged dishonest award of the multimillion maloti tender to Fleet Africa/Silverstone.
Management of government fleet has over the past years been at the centre of Lesotho’s political instability having contributed significantly to the demise of former Prime Minister Pakalitha Mosisili seven-party coalition in 2017.
Then finance minister ‘Mamphono Khaketla was accused of soliciting an M4 million bribe from the directors of Lebelonyane Fleet Services in exchange for a government fleet tender, Khaketla denied the allegation.
Directorate on Corruption and Economic Offences (DCEO) insists Khaketla allegedly solicited a bribe in exchange for a government fleet tender. According to DCEO spokesperson ‘Matlhokomelo Senoko, the case is still pending in the High Court and will be heard in November this year.
Fleeters Holdings cited as the applicant in court papers, filed an urgent application in the High Court’s Commercial division last week Friday after receipt of a letter from the Finance Ministry’s Principal Secretary Motena Tšolo notifying it was unsuccessful.
“Your technical proposal score was 70 percent…please be advised that the preferred bidder for this tender is Fleet Africa/Silverstone with technical proposal score of 82 percent and total costs of M20, 818, 960.00,” Tšolo noted.
As an interim remedy, the Fleeters wants ministry of finance and fleet Africa/Silverstone interdicted and restrained from carrying out operations in fleet tender pending finalisation of its petition before court.
Meant to lower government transportation costs and raise operational efficiencies, the fleet contract is for management of 1400 vehicles over a four-year period which in line with Basotho empowerment policy shall be sourced from local suppliers as government phases out its 900 vehicles.
Ministry of Finance Principal Secretary has been cited as the first respondent alongside eight others in this case.
The Minister of Finance, Tender Panel in the Ministry of Finance, Ministry of Finance, Attorney General, Fleet Africa/Silverstone, Avis (Pty) LTD, Transport Solutions and MBR Transport (Pty) LTD are cited as the second to ninth respondents respectively.
Fleeters want the respondents to come to court and show cause, if any, why the decision to award the fleet tender, number 2/2018/19 to fleet Africa Silverstone cannot be reviewed corrected and set aside.
Fleeters want the respondents to show cause why the decision to award the fleet tender to fleet Africa/Silverstone cannot be declared null and void and of no force and effect.
The company further want to be declared the winner of the fleet tender.
The petitioner also wants the first to fifth respondents to be ordered to adduce all records in fleet tender proceedings and decisions to the court within 14 days.
In his affidavit, Fleeters’ director Bokang Tšoanamatsie argues all companies with intention to tender did so according to the specifications and the tender was never varied. Tšoanamatsie says the tender was closed on September 3, 2018.
He goes on to say, “…on March 28, 2019, Fleeters received a letter intimating that our company has scored 70 percent on the technical proposal and we had not been successful, while fleet Africa/Silverstone scored 82 percent on their technical proposal and won the tender”.
But, Tšoanamatsie says it is shocking that a company which did not take part in the bidding process has won the tender.
“It is important to note there was never a company bidding in the tender by the name of Fleet Africa/ Silverstone.
“Fleet Africa/Silverstone might be some kind of joint venture or partnership of some sort. The assertion is backed up by registration documents of both entities attached to the papers filed or record.”
He further tells the court that “looking closely at fleet Africa documents, it is clear that fleet Africa’s current status in Lesotho is “Struck off” leading to an undoubted conclusion that it is not operative in Lesotho at all.
“A company that is struck off cannot be eligible and or qualify for any work and or tender in Lesotho. It is clear that it does not have the requisite documents for instance, the traders license and tax clearance”.
Tšoanamatsie also says there was never a company by the name Silverstone which tendered in tender notice.
His affidavit continues that “It is therefore wrongful that in the final analysis, it crops up as one of the winners. Clearly the tender documents inclusive of regulations and policy have been flouted.
“It is unlawful and wrongful for the company which did not tender to win the tender. I should mention that the tender document was very clear in that the government of Lesotho was looking for Lesotho registered company and not a partnership or joint venture”.
Tšoanamatsie also notes that awarding a tender to Fleet Africa/Silverstone is clearly failing to adhere to tender specifications and requirements.
“It is a pure failure on the side of the first to fifth respondents to adhere to requisite procedure and policies.
“The decision of the respondents is, therefore, a subject of review, I have therefore been advised that they should be reviewed, corrected and set aside,” he said in the affidavit.
Tšoanamatsie avers that Fleeters has met all the requirements as a Lesotho registered company, has gone through the vetting processes and it was evaluated procedurally and scored accordingly.
“It should, therefore, be declared as the winner of the Government fleet tender.
“Failing to award a tender to a qualifying company and in turn awarding the tender to a non-qualifying company is clearly exercising an unfettered discretion, and acting beyond the powers of first to third respondents is wrongful and unlawful.
“I aver that we have a clear right as we tendered for the government fleet and met all requirements.
“It cannot be right that a company which does not meet the basic requirements is awarded a tender at our expense.
“It is therefore prudent that pending the determination of this application, the ministry of finance be restrained from operationalising the tender,” said Tšoanamatsie in the urgent application.