Walvis Bay pothole tender heads to court

A disputed Walvis Bay pothole repair tender has reached the High Court, with an unsuccessful bidder seeking to stop the municipality from implementing the contract.

Vultune Investments CC has brought an urgent application against the Public Procurement Review Panel, its chairperson, the Walvis Bay municipality, DJJ Investment CC JV Ehangano Building Construction and other parties linked to the bid.

The tender relates to the repair of potholes and ancillary works within the Walvis Bay municipal area.

According to court papers, Vultune wants the High Court to interdict the municipality from implementing the award pending the finalisation of a review application.

It also seeks to review and set aside the Public Procurement Review Panel’s decision of 13 May and the municipality’s 20 April decision to dismiss its reconsideration application and the 2 April notice selecting the successful bidder.

The dispute centres on whether Vultune met a mandatory requirement stipulating that bidders show access to cash or credit facilities of at least N$200 000.

The municipality’s position, according to the papers and a source familiar with its handling of the tender, is that Vultune was disqualified during the compliance stage because one of its submitted documents did not meet the required standard.

The source said the tender evaluation was based on technical and financial criteria, with technical compliance carrying 70% and financial pricing 30%. The source said a bidder that failed the basic compliance stage would not be evaluated further, even if its price appeared competitive.

Final values

The same source said the tender should not be treated as having a fixed contract value, as the work is based on unit rates. Contractors are paid according to the type and volume of pothole repair work carried out, meaning the final amount may be higher or lower depending on the work done.

Vultune maintains that its bid was lower than that of the successful bidder. A legal source familiar with Vultune’s case estimated the successful bid at about N$1.7 million and Vultune’s bid at about N$1.5 million, but the municipal-side source said the final value would depend on the actual work performed.

A legal source familiar with Vultune’s case said the company’s position is that it was disqualified on a ground it believes was not permissible under the tender evaluation criteria.

The source said Vultune also took issue with the municipality proceeding with the award after being informed that the matter would be taken to the High Court.

The municipality opposes the urgent application. It argues that the matter is not urgent, that any urgency has been overtaken by events, that Vultune has not shown a prima facie right and that it has other remedies.

According to the municipality’s heads of argument, the tender was advertised on 17 February and 14 companies submitted bids.

Vultune denies that the matter has become academic and argues that the contract can still be interdicted pending the review.