High Court Rebuffs Reserve Bank, ordered to amend submission case against PPDA
The High Court has ordered the Reserve Bank of Malawi (RBM) to amend its submission so it sues the right party in a case it brought to court challenging the decision of the tender Review Committee of the Public Procurement and Disposal of Assets (PPDA).
PPDA ordered RBM to retender the supply of ICT equipment whose winner was a local IT company but favoured a foreign owned business that was disqualified for not meeting the specified tender requirements.
RBM took to court suing the local company, Sparc Systems Limited in a Civil Case Number 13 of 2021 and wanted the High Court to set aside the PPDA Review Committee ruling which ordered a retender of the contract which was wrongfully awarded to Mitra Systems Limited which is jointly owned by a Rwandan, Robert Beninimana and a Zimbabwean, Martin Masawi.
A certificate of registration seen by Nyasa Times indicates that Mitra Systems Limited was only registered in October 2018 while the RMB tender required bidders to have been in business for not less than five years.
Nyasa times investigations show the duo were working for Southern Business Solutions before opening Mitra Systems Limited. Southern Business solutions has never been part of Mitra Systems Limited.
Sparc Systems Limited in its defence submission asked the court to add PPDA in the proceedings so that it can defend its ruling against RBM.
RBM objected opting to target the supplier than the decision maker, a thing which the judge found as misleading.
“Having heard that the applicable legal regime in respect of procedure is CPR, it is important that these proceedings be properly entitled otherwise naming Mitra Systems Limited and Sparc Systems Limited as 2nd Claimant and 1st Defendant is most misleading. The fact of the matter is that it is the Reserve Bank of Malawi that seeks to challenge the decisions made by the Review Committee. Both Mitra Systems Ltd and Sparc Systems Ltd are interested parties in that they are most likely to be affected by the review proceedings in one way or the other,” said Judge Kenyatta Nyirenda.
“RBM is hereby ordered to amend its submission and sue PPDA instead of Sparc Systems Limited,” Nyirenda ordered, in a case analyst say will help to develop local procurement case law whose ruling will stop the public sector and parastatals stop flouting procedures in awarding.
Nyirenda went on saying: “Accordingly, it is ordered that the case should be entitled as follows:
JUDICIAL CASE NO. 13 OF 2021 BETWEEN THE RESERVE BANK OF MALAWI AS CLAIMANT, REVIEW COMMITTEE OF THE PUBLIC PROCUREMENT AND DISPOSAL OF ASSETS AUTHORITY as a DEFENDANT, SPACR SYSTEMS LIMITED as the 1ST INTERESTED PARTY and MITRA SYSTEMS LIMITED as the 2ND INTERESTED PARTY.
Further ordering that: (a) (b) (c) the Claimant should file an amended application for review under section 60 (10) of the Act, properly naming the parties as stated hereinbefore at the last preceding paragraph; the Claimant should have the amended application for review under Section 60 (10) of the Act served on the other parties within 3 days of this Ruling; and the Defendant and the Interested Parties have to file their respective responses within 7 days of being served the amended application.”
Hearing of the inter-parties’ application by the Claimant for a stay of the decision by the Review Committee has therefore been scheduled for 18th May, 2021 at 10 o’clock in the afternoon.
RBM wants a stay of enforcement of the decision by the PPDA Review Committee, claiming the decision by the committee did not provide enough reasons for ordering the retender. The bank also argues that it looked at beneficial owners of the firm Mitra Systems Limited in awarding the contracts to them hence the need for the High Court to stay PPDA’s decision.
SPARC Systems Limited actually complained to PPDA after noticing a series of mistakes in the bidding process, which among others, saw RBM awarding the said contracts to the alleged successful bidder.
PPDA Review Committee agreed with SPARC Systems Limited’s submission that the bidding process was not procedural and ordered a retender.
SPARC Systems Limited also accused the Reserve Bank of Malawi of unfair treatment, breaching Section 30 of the PDA Act of 2017 which requires that all public procurement proceedings be conducted in a manner that promotes transparency, accountability, non-discrimination, fairness, open competition, anonymity, economy, efficiency and responsiveness to modern information and communications technology.
PPDA also advised the bank to engage independent evaluators for the procurement, with the tender published at a reduced period of 21 days, before the issue was taken to the High Court of Malawi.
Last year in November, Human Rights Defenders Coalition (HRDC) zeroed in on the two tenders at the Reserve Bank of Malawi (RBM) when it wrote the Anti-Corruption Bureau (ACB) to investigate possible corruption on the mater.
Follow and Subscribe Nyasa TV :
