Immigration wins K27bn Malawi E-passport case: Supreme Court dismisses Iris Group’s challenge on procurement

The Supreme Court of Appeal  has again has dismissed an application by Iris Group SA and Challenge International  with costs to stop Department of Immigration and Citizenship on the procurement of K27 billion contract to upgrade the Passport Issuance System (PIS) and Introduction of the Electronic Passport.

Abdul Karim Batatawala’s company IRIS Group SA whose bid was disqualified on preliminary assessment by the department’s Internal Procurement Committee after it failed to meet basic requirements and Challenge International, dragged Immigration Department to court after obtaining an interlocutory injunction, accusing Immigration Department of breaching bid regulation for the contract.

The injunction was first dismissed at High Court and IRIS Group SA went to Supreme Court where it was also dismissed and they appealed again to the Supreme Court of Appeal which also dismissed the order.

In a detailed ruling seen by Nyasa Times dated January 11 2019. Judge Lovemore Chikopa questioned the metis of grounds, saying applicants’ bid had failed.

“On the other hand, we cannot fail to notice that the applicants had actually failed. The reasons, therefore, have not been disputed by the applicants despite them having ample time and space to do so,” reads the ruling in part of the  MSCS civil appeal case No 75, 2018.

The contract was dully awarded to Two Trees Investments as a joint venture with ZETES, a reputable Belgium firm.

The bid document Clause: 11.1 of page 22 states that ‘A bidder shall be allowed to enter into a joint venture with other consultants not invited for this assignment.’

The clause caused some mist after ZETES which was invited to participate decided to withdraw before bidding and then had a joint venture with Two Trees.

IRIS Group SA accused the Chief Immigration Officer Innocent Medi of breaching its own bidders’ instructions.

But Director General of   Public Procurement and Disposal of Assets Authority (PPDA), Timothy Kalembo,  informed Ministry  of Homeland Security in a letter dated December 5  2018 that section 2 of the Public Procurement and Disposal of Assets Act 2017 provides that a bidder  “means any participant who has expressed interest in procurement proceedings by submitting a bid.”

ZETES did not submit a bid but had a joint venture, therefore it was not an initial bidder.

Kalembo  said in the letter that  if the bidding document says that no bidder will go into joint venture with another bidder who has participated in these proceedings, then the meaning is that such another bidder must have  submitted a bid in those proceedings.

“In our present case, the other party has withdrawn by not submitting a bid which means that such a party cannot be said to be a bidder. The provisions of the Act must prevail when the provision in the bidding document is inconsistent with the provision of the Act,” reads Kalembo’s  letter as seen by Nyasa Times.

The authority’s director general clarified that the fact that a bidder is on a joint venture with a party who expressed interest in the proceedings but did not submit a bid cannot be used a s a ground to fall a bid of  a joint venture “since the other party who withdrew is not a bidder in accordance with the Act.”

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