Centre for Mindset Change moves to block retendering process for Nsanje-Marka Rail Project

A local human rights watchdog – the Centre for Mindset Change (CMC) – has vowed to block the retendering process for the construction of the Nsanje-Marka Railway Line, fearing this would give Mota Engil Africa yet another chance to bid for the contract.

This follows revelation on Thursday last week that the Ministry of Transport and Public Works would retender the bid after it was discovered that the bids had already expired when they met to reconstitute an Evaluations Committee in compliance with the order from the Anti-Corruption Bureau (ACB).

The Bureau had earlier terminated the Mota-Engil Africa’s MK48, 244, 861, 524.98 contract and gave a restriction to the Ministry of Transport and Public Works, a few days after CMC issued a seven-day ultimatum to the government to cancel the contract, suspecting lack of transparency in the way it was awarded.

ACB further recommended the termination of the contract and gave the ministry 15 days to re-evaluate bids and identify a new contractor and that a new Evaluation Committee be instituted within this period.

However, this did not materialize and the newly appointed Minister of Transport and Public Works, Jacob Hara, attributed it to the expiry of the bids.

Hara, who spoke exclusively to Nyasa Times, said re-evaluation of the bids would not be possible because the bid validity period expired and doing so would be going against Regulation 48 of the Public Procurement.

Regulation 48 (1) reads: “A procuring and disposing entity shall set a validity period for bidding documents that is of a sufficient length to enable the procuring and disposing entity to complete the evaluation and comparison of bids and to obtain all the necessary approvals so that the procurement contract can be awarded within that period.”

Regulation 48 (2) reads: “If, prior to the expiry of the validity period of bids, the procuring and disposing entity requests bidders to extend the validity period of their bids, it shall address such a request to all the bidders.”

But this has not gone down well with CMC, which fears the process might give another chance to Mota Engil Africa, which is suspected of using backdoor means to get the contracts.

The Centre’s Executive Director Philip Kamangirah said on Friday that his organization has already written the Ministry of Transport and Public Works, with a copy of the letter sent to ACB, expressing their dissatisfaction with the ministry’s intention to retender the bid.

Kamangirah argued that the regulation is silent on whether the bid validity period can be extended or not after it has expired.

“We have consulted our legal team and we are convinced that the reasons that your ministry has used for this are not valid but convenient for your ministry to correct the mistakes of the bidder that you intended to award and give them a second chance,” reads the letter addressed to Secretary for Transport and Public Works dated December 23, 2021 and signed by CMC executive director Phillip Kamangirah.

“This is after the Anti Corruption Bureau found that the process that your ministry used was marred with elements of corruption and that the Anti Corruption Bureau is investigating the bidder that you intended to award,” the letter adds.

CMC says it will get an injunction against the re-tendering process and will also ask the court to interpret regulation 48 that tackles the issue of bid validity among others.

CMC says it is suspicious of the ministry’s conduct because the issue of bid validity has only come out conveniently after the recommendation from ACB and was never an issue when the notice of intention to award was being issued.

“We call upon your ministry to widely consult on Regulation 48 and do the right thing which is to ask all the bidders to extend their bid validity periods if indeed you find it to be an issue at this stage and you re-evaluate the bids,” reads the letter.

In the first bid process, Mota Engil from Portugal became the winner followed by China Railway and then China Civil Engineering Construction.

Last week, in a twist of events, the ACB changed tune asking the ministry to conduct a retender instead of re-evaluation, which it had earlier recommended.