Xaris slain in court
The lucrative contract for constructing a power plant at Walvis Bay is off the table.
Xaris Energy was handed yet another blow in its attempt to secure the lucrative Walvis Bay Power Project contract when the Supreme Court on Friday ruled that the NamPower tender be reviewed and set aside.
Xaris and NamPower have to jointly and severally pay the cost of the appeal brought by Arandis Power (Pty) Ltd, which was the “reserved bidder” for the multibillion-dollar tender to put up a 250-megawatt power plant at the coast.
Arandis Power appealed against a High Court decision that its challenge against the award to Xaris had no merit and lacked integrity.
Arandis Power had filed its appeal on 30 January, two days after which NamPower had cancelled the tender it had awarded to Xaris.
Arandis Power, however, had said that the matter would only be over if Xaris unequivocally and irrevocably acknowledge in writing that the tender had been validly cancelled. It argued that Xaris refused to provide the requisite acknowledgement of the cancellation.
Background
The tender process started in March 2014 when NamPower invited applications for the contract. By the closing date in September 2014 three companies had submitted a 'request for proposal' (RFP) documentation.
They were Arandis Power, Xaris Energy and Sinohydro Corporation Limited. NamPower on 21 October 2014 informed Xaris and Arandis Power that they were the “preferred” and “reserved” bidders respectively. In March 2015 the NamPower board gave the tender to Xaris. Arandis Power maintained that it was not informed of this decision, which was posted on the NamPower website only on 15 April 2015. In the meantime, the minister of mines and energy had “directed” NamPower to postpone the award of the contract pending an investigation, a directive NamPower complied with. President Hage Geingob had confirmed the ministry's position on 29 June 2015.
According to Arandis Power, former mines and energy minister Obeth Kandjoze, at a subsequent meeting with it, confirmed that the tender was put on hold and that the tender award no longer resided with NamPower but instead with the Office of the President.
Kandjoze had denied that he said that, and on 22 December 2015 he announced that NamPower could proceed to negotiate with Xaris. This negotiation was subject to certain conditions. Arandis only became aware of the new developments on 18 January 2016 and questioned the decision in letters addressed to Kandjoze, attorney-general Sacky Shanghala and NamPower.
When Kandjoze responded that the matter was referred to the AG's office, Arandis launched a High Court challenge, which it lost in July 2016. The High Court argued that Arandis had unduly delayed its court challenge because it was aware that Xaris was the preferred bidder already in October 2014.
During the course of the review proceedings NamPower had conceded that certain concessions were made in the tender award to Xaris. These concessions were that the award to Xaris was made outside the period of the tender validity and that it did not comply with the tender requirements.
Supreme Court judges Sylvester Mainga, Dave Smuts and Elton Hoff presiding over the matter said the High Court should also have set aside the tender award because it has accepted that NamPower's acknowledgement that it gave the tender to Xaris outside the period of the tender validity in the absence of any extensions.
Arandis Power was represented by Steven Budlender and Natasha Bassingthwaihte instructed by Etzold-Duvenhage Attorneys.
Xaris Energy was represented by Raymond Heathcote assisted by Beatrix de Jager instructed by Engling, Stritter & Partners.
CATHERINE SASMAN
Xaris and NamPower have to jointly and severally pay the cost of the appeal brought by Arandis Power (Pty) Ltd, which was the “reserved bidder” for the multibillion-dollar tender to put up a 250-megawatt power plant at the coast.
Arandis Power appealed against a High Court decision that its challenge against the award to Xaris had no merit and lacked integrity.
Arandis Power had filed its appeal on 30 January, two days after which NamPower had cancelled the tender it had awarded to Xaris.
Arandis Power, however, had said that the matter would only be over if Xaris unequivocally and irrevocably acknowledge in writing that the tender had been validly cancelled. It argued that Xaris refused to provide the requisite acknowledgement of the cancellation.
Background
The tender process started in March 2014 when NamPower invited applications for the contract. By the closing date in September 2014 three companies had submitted a 'request for proposal' (RFP) documentation.
They were Arandis Power, Xaris Energy and Sinohydro Corporation Limited. NamPower on 21 October 2014 informed Xaris and Arandis Power that they were the “preferred” and “reserved” bidders respectively. In March 2015 the NamPower board gave the tender to Xaris. Arandis Power maintained that it was not informed of this decision, which was posted on the NamPower website only on 15 April 2015. In the meantime, the minister of mines and energy had “directed” NamPower to postpone the award of the contract pending an investigation, a directive NamPower complied with. President Hage Geingob had confirmed the ministry's position on 29 June 2015.
According to Arandis Power, former mines and energy minister Obeth Kandjoze, at a subsequent meeting with it, confirmed that the tender was put on hold and that the tender award no longer resided with NamPower but instead with the Office of the President.
Kandjoze had denied that he said that, and on 22 December 2015 he announced that NamPower could proceed to negotiate with Xaris. This negotiation was subject to certain conditions. Arandis only became aware of the new developments on 18 January 2016 and questioned the decision in letters addressed to Kandjoze, attorney-general Sacky Shanghala and NamPower.
When Kandjoze responded that the matter was referred to the AG's office, Arandis launched a High Court challenge, which it lost in July 2016. The High Court argued that Arandis had unduly delayed its court challenge because it was aware that Xaris was the preferred bidder already in October 2014.
During the course of the review proceedings NamPower had conceded that certain concessions were made in the tender award to Xaris. These concessions were that the award to Xaris was made outside the period of the tender validity and that it did not comply with the tender requirements.
Supreme Court judges Sylvester Mainga, Dave Smuts and Elton Hoff presiding over the matter said the High Court should also have set aside the tender award because it has accepted that NamPower's acknowledgement that it gave the tender to Xaris outside the period of the tender validity in the absence of any extensions.
Arandis Power was represented by Steven Budlender and Natasha Bassingthwaihte instructed by Etzold-Duvenhage Attorneys.
Xaris Energy was represented by Raymond Heathcote assisted by Beatrix de Jager instructed by Engling, Stritter & Partners.
CATHERINE SASMAN
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