NAC left with Silombela, Ell-Kalawi clean-up
14 March 2018 | Transport
The shenanigans of Courage Silombela, the Namibia Airports Company’s strategic executive for engineering, IT and special projects, and the company’s former CEO, Tamar Ell-Kalawi, have come to the fore in documents before the High Court in Windhoek.
The Namibia Airports Company (NAC) is asking the court to set aside the decision and “purported resolution”, dated 23 June 2016, to appoint China State Construction Engineering to do rehabilitation work on the Ondangwa airport’s tarmac and apron, the work forming the third phase, known as phase two, of rehabilitation done at the airport.
In his founding affidavit, dated 1 December 2017, the acting CEO of NAC, Lot Hafidi, told the court that Aurecon Consulting Engineers had been appointed to engage contractors on a “closed tender basis through obtaining three quotations from credible and seasoned contractors of reputable note”.
The first phase (phase 0) of the work was completed by a different company and Aurecon recommended four names of prospective tenderers to Ell-Kalawi for phase one. Hafidi said “the four companies did not include China State”.
It is not clear how the recommendation to include China State was arrived at, but the NAC, through the CEO and Silombela, on 5 September 2014 recommended two names to Aurecon, which included China State.
By November, Aurecon had recommended China State be appointed for phase one and this was approved in December 2014 by the NAC board.
Hafidi told the court that there was no indication that China State would do any other work for NAC save that listed as the scope of works for phase one. This work was completed in July 2016.
On 27 May 2016, in an undated document, forming part of the board pack for the board meeting, Silombela asked the board to approve the re-appointment of China State as the main contractor for what he described as the “continuation” of the upgrading of the airport. He asked the board in that document to approve spending on N$200 423 355.09 in this regard.
Hafidi wrote that phase two should, according to company documents, go out on tender but said that Silombela had, as far back as 2015, indicated to Aurecon there would be no competitive bid and further, that the scope of the contractor currently on site (China State) would be increased. He had also indicated work of roughly N$100 million was anticipated.
“Mr Silombela appears to have set out to create a situation where he could argue to the board that there was insufficient time to go out on public tender, or, to misrepresent to the board that phase two was a continuation of phase one. It is apparent that Silombela’s motive, and indeed as supported by Ell-Kalawi, was that they wanted to keep the same team as phase one at any cost and therefore, manipulated the process to achieve this,” Hafidi stated.
It represented a departure from the standard procurement procedures of the NAC.
On 23 June 2016, the board approved China State’s appointment without a tender and at a cost of N$211 616 796.30.
According to Hafidi: “It has never been made clear how the amount was arrived at and when it was escalated to this.”
Preliminary figures had indicated costs in the region of N$159 million to N$169 million and this is consistent with the figures originally submitted to the board by Silombela in May of 2016. China State had, on 1 June of that year, requested a review of its original quote which was approved by Aurecon.
Hafidi told the court there was no benchmark against which China State’s prices could be measured nor could it be determined whether the prices were market-related or the lowest.
Silombela had at one point suggested the price had increased by only 1.5% but also said that certain works had been excluded from the original quote.
“China State sought escalation of its pricing of over 26%,” Hafidi wrote.
He told the court that the cost for the asphalt had increased by over N$7 million and the new quote had “inexplicably” included costs of N$11 million for fencing.
“This in fact, was work to be carried out in phase three,” Hafidi said. “I point out too, that Aurecon must have known about the inclusion of parts of the phase three works into the phase two bill of quantities by China State.”
Directly after board approval on 23 June 2106, the CEO informed China State they were appointed, which Hafidi told the court was against the procurement procedures of the company.
“There was no expression of interest, request for proposals or tender invitation prior to the appointment of China State.
Hafidi told the court there was no compliance in terms of urgency or any other contingency as written in the policy which could have justified the appointment without a competitive bid.
Silombela resigned on 10 November 2017 “in the midst of a pending disciplinary hearing involving the award of phase two Ondangwa upgrades while Ell Kalawi resigned on 1 December 2017 - four days prior to his disciplinary hearing, although there is no settlement agreement signed with him by NAC. The 40-page charge sheet against Silombela includes charges of corruption, fraud and theft. However, in his resignation letter, he noted that his disciplinary measures could legally not be pursued but, added that he would gladly provide testimony in disciplinary matters pertaining to other employees.
Hafidi wrote that Silombela had misrepresented to the board the price increase in the project and provided no explanation for the jump in cost.
Hafidi, at the time legal officer for NAC, also at length explained to the court his difficulty is securing cooperation and documents from Ell-Kawali as the company and board tried remedial measures, including a forensic audit by Deloitte.
He also told the court that the entire project is still off the books as NAC can effectively not afford the work, neither can it pay for the proposed Hosea Kutako upgrades.
During November last year, The Namibian reported that the then attorney-general Sacky Shanghala had been roped in during September 2017 to provide a legal opinion and had during November last year, urged then works minister Alpheus !Naruseb to use his ministerial power to compel the NAC to appoint China State in a bid to get the works completed. There was concern over the delay in the rehabilitation of the runway and apron.
While the NAC maintains it has no contract with China State, Shanghala at the time maintained there is a legal relationship between the two entities.
China State, through its counsel Shimue Mbudje from Lorentz Angula Incorporated, has filed an intention to defend. The matter, with NAC represented by Clive Kavendjii of Kangueehi and Kavendjii, heard by Judge Thomas Masuku yesterday, was postponed to 17 April for China State to file replying documents.