Airport tender in limbo
A full bench of the Supreme Court has ruled that the airport tender was non-procedurally awarded and upheld that the minister could not cancel the entire tender.
A tender for the upgrading and expansion of Hosea Kutako International Airport is in limbo after the Supreme Court ruled that it had been granted to a Chinese company in contravention of Tender Board procedures.
The awarding of the tender was set aside and declared invalid. However, the Supreme Court upheld a High Court decision to set aside the transport minister's directive to cancel the tender in its entirety.
The Namibia Airports Company (NAC) awarded the N$6.2 billion tender in December 2015.
This decision was later revoked by President Hage Geingob, who ordered the Ministry of Works and Transport to discontinue all activities relating to the project.
This matter was later challenged in the High Court by the Anhui Foreign Economic Construction Group.
Anhui succeeded in September last year when Judge Shafimana Ueitele ruled that the minister had not acted in accordance with the Namibia Airports Company Act when he cancelled the contract.
He also found that the minister did not exercise his own discretion when carrying out the presidential instruction to cancel the tender. Geingob, as well as the ministers of finance and transport, then appealed the High Court judgement of September 2016 which had set aside as invalid instructions directing the Namibia Airports Company (NAC) to halt tender processes for the upgrade of the Hosea Kutako International Airport.
“The valid procurement in capital projects involving government had not been followed, nor had treasury approval been granted,” a full bench of the Supreme Court comprised of Chief Justice Peter Shivute and appeal judges Dave Smuts and Sylvester Mainga ruled.
They emphasised that a defective directive had been made by the State and a state-owned enterprise involving public funds of more than N$6 billion.
“The primacy of public interest in procurement by means of public funds, particularly on the scale envisaged in the upgrade of the airport, requires that statutory provisions should be scrupulously and transparently complied with,” the judgment read.
It added that where there had been breaches, they should be corrected.
“If the NAC's procurement process has been mired in irregularity as would appear to be indicated in the president's media release and implied by the directive, then the government would have powers as shareholder to address and remedy those issues.”
The Supreme Court further stated that there was compelling public interest in vindicating the constitution and the rule of law by setting aside invalid administrative action.
According to the appeal judges, the High Court was correct in finding that the directive was invalid and in setting it aside.
“The appeal against that order must accordingly fail,” he said.
STAFF REPORTER
The awarding of the tender was set aside and declared invalid. However, the Supreme Court upheld a High Court decision to set aside the transport minister's directive to cancel the tender in its entirety.
The Namibia Airports Company (NAC) awarded the N$6.2 billion tender in December 2015.
This decision was later revoked by President Hage Geingob, who ordered the Ministry of Works and Transport to discontinue all activities relating to the project.
This matter was later challenged in the High Court by the Anhui Foreign Economic Construction Group.
Anhui succeeded in September last year when Judge Shafimana Ueitele ruled that the minister had not acted in accordance with the Namibia Airports Company Act when he cancelled the contract.
He also found that the minister did not exercise his own discretion when carrying out the presidential instruction to cancel the tender. Geingob, as well as the ministers of finance and transport, then appealed the High Court judgement of September 2016 which had set aside as invalid instructions directing the Namibia Airports Company (NAC) to halt tender processes for the upgrade of the Hosea Kutako International Airport.
“The valid procurement in capital projects involving government had not been followed, nor had treasury approval been granted,” a full bench of the Supreme Court comprised of Chief Justice Peter Shivute and appeal judges Dave Smuts and Sylvester Mainga ruled.
They emphasised that a defective directive had been made by the State and a state-owned enterprise involving public funds of more than N$6 billion.
“The primacy of public interest in procurement by means of public funds, particularly on the scale envisaged in the upgrade of the airport, requires that statutory provisions should be scrupulously and transparently complied with,” the judgment read.
It added that where there had been breaches, they should be corrected.
“If the NAC's procurement process has been mired in irregularity as would appear to be indicated in the president's media release and implied by the directive, then the government would have powers as shareholder to address and remedy those issues.”
The Supreme Court further stated that there was compelling public interest in vindicating the constitution and the rule of law by setting aside invalid administrative action.
According to the appeal judges, the High Court was correct in finding that the directive was invalid and in setting it aside.
“The appeal against that order must accordingly fail,” he said.
STAFF REPORTER
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