Critical water infrastructure such as dams, tunnels, canals and water pumps are under threat as the department of water and sanitation is embroiled in a legal battle over a maintenance contract that expired two years ago.
While the legal battle plays itself out in the Pretoria High Court, the department is being forced to hire companies to undertake emergency work that has been described as “self-created”.
The department has also ignored its own legal advice that the tender should be awarded to a preferred bidder and instead indicated that it would oppose any court application – but has since failed to file any papers.
A water expert said maintaining critical infrastructure on an emergency basis was playing “Russian roulette” with the nation: “You cannot and should not be maintaining [only] when there are leaks, bursts and problems with pumps. Water infrastructure has to be maintained constantly and has to be planned carefully. We are incurring significant maintenance backlogs and the infrastructure is absorbing a lot of pressure.”
On Friday the department was ordered to release the tender’s evaluation process records to construction company Bicacon, which was recommended for the project nationally.
The information, which Bicacon wants the court to compel the department to release, is expected to show why the critical project has stalled.
Department spokesperson Sputnik Ratau said they would comply with the court order because “we want to make sure that issues of governance are addressed”.
In court papers filed in July, Bicacon demanded answers to why the department had failed to award the contract, which has since been extended seven times, and allow the department to use contractors on an emergency basis for the work.
Bicacon’s chief financial officer Mokgaetjie Molomo said in court papers that the “application [is] seeking reasons the tender validity period has been extended five times, without an award. The value of the tender is in excess of R1 billion, and relates to the maintenance of vital national water resources and infrastructure. The need for such maintenance is dire and the failure to award the tender is prejudicing not only the applicant, but the country in general and its citizens’ right to access to water.”
Molomo added that the review record had not been provided.
“Attempts to get the record thereafter have been fruitless. In the meantime, the latest extension [seventh] of the tender, again without reasons being provided, has – absurdly – extended the validity period to January 31.”
The evaluation documents, she argued, would reveal irregularities in the adjudication process: “The applicant is aware of grave irregularities in the adjudication process that will be borne out by the review record.”
Only “grave irregularities” during the adjudication process stand in the way of the company being awarded the tender, Molomo said, adding that the company had successfully gone through all the phases of the evaluation process.
Instead of making the appointment, the department “was instead engaging in expensive emergency procurement of services that formed the subject matter of the delayed tender.
“The above self-created emergency procurement was clearly fruitless, wasteful and irregular. More importantly, it placed water supply at risk due to the continued failure of the department to conclude the bid,” Molomo said.
The department’s legal office drafted an opinion on the matter in April. It showed that the bid evaluation committee had recommended a year ago that Bicacon be appointed.
However, the adjudication committee, which met at the end of January, did not make the appointment and instead requested clarity on a number of issues.
The supply chain unit assured the committee that all evaluation criteria had been complied with, but more queries were raised by the adjudication committee.
“Concerns raised by the adjudication committee have been satisfactorily addressed by supply chain and the evaluations committee in the reports, therefore, there are no identified irregularities or wrongs in the process that we could pick up thus far. There are no grounds (at least procedurally) for the recommendation by the adjudication committee that the tender be cancelled,” it added.
Lawyers advised officials to award the contract and said that, if there were still concerns from the adjudication committee, they should be raised with the department’s director-general, Mbulelo Tshangana.
“It must, however, be noted that this matter has been dragging on for too long and needs to be dealt with expeditiously. There is a potential for the process to be challenged through a judicial process, which will result in the department incurring legal costs,” the legal opinion said.
Five months after the legal opinion, Tshangana wrote to Willie Mathebula, the acting chief procurement officer at Treasury, asking him to allow the department to cancel the contract due to irregularities that were identified in Bicacon’s bid.
Last month, Mathebula wrote back to Tshangana, declining his request.
“The reason for your cancellation is not justifiable. It is not clear why the preliminary investigation was only focused on the recommended bidder and not the complete tender process. It is also not clear why the tender took more than 20 months to be finalised. National Treasury does not support the cancellation,” Mathebula wrote.
He advised the department to rather appoint a new team to re-evaluate the tender.
Bicacon said that, as soon as the company received the files from the department, it would file an urgent application to compel the department to award the contract. The department has also been slapped with costs.
In August, the department’s legal office also said the decision to appoint a service provider through emergency procurement to maintain and repair the Usutu-Vaal pump station was falling short of meeting the criteria for emergency procurement.
“The emergency work required to get the relevant pump stations functional should have been planned for in advance, otherwise this emergency situation can be considered to be self-created.”
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