NamPower to disclose documents

“Every scrap of paper throwing light, however indirectly, on what the proceedings were, both procedurally and evidentially, leading to the decision by the NamPower board of directors to cancel the construction of new Masivi and Shoyambi substation, must be disclosed,” the Windhoek High Court ordered.

Deputy Judge President Hosea Angula made these remarks during an interlocutory application for the disclosure of the record of decision making.

At the heart of the matter is the cancellation of a tender, valued at N$352 million, to Consolidated Power Projects of Namibia (Conco) notwithstanding the recommendations from the internal tender board to award the tender to them. Conco has taken NamPower and five other respondents to court in this regard.

Conco on Friday won the interlocutory application in the High Court in Windhoek for the disclosure of documents they see as relevant.

NamPower informed Conco on 16 February 2017 about the cancellation of the tender for the construction of the two substations, as well as the cancellation of the tender for the construction of the new Kunene substation and the Omatando substation extension.

Angula further dismissed a technical legal point raised by the respondents NamPower, the chairperson of NamPower board, the chairperson of NamPower's tender board and the central procurement board of Namibia, that the relationship between them and the applicants was contractual as opposed to administrative in nature. Therefore, Conco can protect its rights through private law remedies without resorting to review proceedings and that they did not exhaust internal remedies. Both legal points were dismissed.

The other respondents in the matter are Siemens Aktiengesselschaft, and General Electric Grid Solutions and Radial Truss Industries.

The judge said it is necessary to disclose the documents sought for the procedural fairness of the decision to cancel the tender and the substantive fairness to cancel the tender. Angula said the respondents' grounds for the refusal to disclose based on irrelevance and lack of proper identification, lacked merits. Conco lost out on two construction tenders valued at N$352 million, due to allegations that they had received inside information.

NamPower was said to have had an alleged conflict of interest as Jurgen Senke, the parastatal's former senior manager of project management and implementation, had joined Conco.

Senke resigned in February 2016 to join Conco and this is alleged to be at the same time when evaluations were being made to award the tenders. He was responsible for the administration of the Omatando tender as well as for the preparation of tender documents for the transmission projects.

When Conco emerged as the frontrunners for the tender for the Omatando substation, it was suspected he passed information on the bid.

The Johannesburg-based company had three NamPower tenders, namely the Zambezi substation, the Gerus substation and Omburu & Otjikoto 220 kV shunt voltage compensator. The Hippo substation tender and a tender for the protection of substation equipment were also been awarded to Conco.

The former managing director of NamPower, Leake Hangala, owns a 25% stake in Conco Namibia and according to reports, the company is said to have been awarded two tenders allegedly under controversial circumstances over two years.

The court further ordered NamPower to disclose all tender evaluation reports for the two tenders, NPWR 2015/50 and NPWR 2016/16 which were prepared in terms of the Tender and Procurement Policy, all tender board recommendation forms signed by head of tender evaluation team, chairperson of the Tender Board and MD for the two tenders.

It also ordered for further disclosure, the minutes of each NamPower Tender Board meeting where the two tenders were discussed and the 8 February NamPower board meeting, documents evidencing each objection raised to and by the board against the awarding of the tenders, including those raised by Siemens and General Electric about the conflict of interest between the period of September 2016 to December 2016 and the documents evidencing action in response to the objection raised against the award of the two tenders.

The respondents, in complying with the order, are ordered to make copies of the requested documents available to the applicant for inspections within 10 days.

The matter was postponed to 18 October for case management.

Advocate Raymond Heathcote appears for Conco, instructed by Engling Stritter and Partners while Advocate Elia Shikongo of Shikongo Law Chambers appears for the respondents.