REPORT ON THE CONSTRUCTION OF THE NEW SENATE BUILDING PRESENTED
BY
THE PORTFOLIO COMMITTEE ON THE PRIME MINISTER1S MINISTRIES AND ,DEPARTMENTS1 GOVERNANCE1 FOREIGN RELA T/ONS AND INFORMATION CLUSTE
- Background It is in the public domain that the construction of new Senate building was envisaged to have started by now, and public funds have been continuously appropriated by Parliament each financial year from the year 2012, but to- date there is no physical structure erected nor there are any signs of construction work on site. It is also common knowledge that there was a court ruling with regard to the re-tendering for this particular project. In the light of these developments, the Committee attached hereto as (Annex 1) felt obliged to enquire into the matter as the responsible body that is entrusted to perform oversight over the Government Ministries and Departments falling under its jurisdiction. In terms of Standing Order No. 95 (1) (a) and (d) respectively; the Committee has the power: • to exercise an oversight function over the executive authority and any organ of state in relation to the ministerial portfolios allocated to it, including the implementation of legislation and thereby maintain their accountability to Parliament; and • to monitor, investigate, enquire and make recommendations relating to the legislative programme, budget, rationalisation, restructuring, functioning, organisation, structure, personnel, policy formulation or any other relevant matter of Government Ministries and Departments.
It is therefore, against this background that the following findings, observations, and recommendations were made by the Committee in pursuit of the matter. - Introduction In its wisdom, the Committee found it necessary to call for papers, and hear oral evidence which was recorded and transcribed by resolution of the Committee. Various stakeholders were summoned (Annex 2). This report will attempt to present factual information and recommendations based on the documentation and oral submissions made by various stakeholders who happened to be involved in the project planning, management and procurement process.
Page 1 of 5 - Findings and Observations The Committee made the following findings:
• In July 2012, the Ministry of Public Works issued invitations for bids for the construction of the Senate and the following construction companies expressed their interest to bid: ❖ Qing Jian Group ❖ China Shanxi Construction ❖ Flash Construction ❖ Yan Jian Construction ❖ N.M. Khojane construction ❖ Sigma Construction ❖ LSP Construction ❖ Brix/ DevinfraJv • The threelnternational Companies (namely: Qing Jian Group, China Shanxi Construction and Yan Jian Construction) were expected to submit all tender documents translated into English and authenticated by the Chinese Embassy before applying as was stipulated in Addendum No.l to the invitation to tender. Yan Jian Constructionwas the only Company that had its tender documents translated and authenticated, whilethe first twoabove-mentioned Companies failed to meet the specifications of the invitation to tender relating to the authentication of their documentation. • The Evaluation Team thereafter took the tender documents for the said Companies to the Chinese Embassy to be translated and authenticated but the Embassy refused to authenticate the translation suggesting that it is the sole responsibility of each company to submit its own documents for authentication. The said twofirms and Sigma Construction were disqualified for failure to meet the requirements. This has been stated in the Evaluation Report and Addendum No. 1 attached hereto as (Annex 3) as well asin the Deputy Attorney- General’s Legal Opinion referred hereto as (Annex 4)
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• The Evaluation Team made a recommendation that Yan Jian Construction was the preferred bidder and should be awarded the contract for the construction of the new Senate building attached hereto as (Annex 3) and this has also been indicated in the Deputy Attorney- General’s Legal Opinion(Annex 4).
• The tender was not awarded to Yan Jian Company as per the previous Evaluation Team’s recommendation because then the Chief Accounting Officer made the instruction to re-tender the project. The entire tender was therefore cancelled. The project was re-tendered and this resulted in a case lodged in the High Court by Flash Company challenging the re- tendering. The judgement was delivered on 13 th May, 2016 in which the court ruled that the tendering process must proceed and the ruling is attached hereto as (Annex 5)
• Following the court ruling, on lih October, 2016, the then Principal Secretary of the Ministry of Public Works and Transport informed the Senate that Yan Jian Construction has been awarded the contract (Annex 6).Yan Jian Constructionwas also informed that, it was the preferred bidder and had negotiations pertaining to escalation of prices with the Ministry of Public Works and Transport. This has also been reflected in Deputy Attorney General’s Legal Opinion (Annex 4).
• Yan Jian Company has not been awarded the tender to date because the current Principal Secretary (PS)of the Ministry of Public Works and Transport issued a directive to re-evaluate all bids following his observation that there were some bidders who were unfairly disqualified.The new Evaluation Team did not consider Addendum No. 1 during the evaluation process since they were not aware of it and recommended Qing Jian Construction to be awarded the contract for the construction of the Senate, instead of Yan Jian which was previously recommended as indicated above.
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• On 5th October, 2017 the Ministry of Public Works and Transport informed the Senate that the contract has been awarded to Qing Jian Construction. GP-66 Form was sent to the Senate for confirmation of the availability of funds in order to engage the aforesaid contractor and commence the construction of the new Senate building, but the Senate Officials have not endorsed the confirmation to date attached hereto as (Annex 7).
• The Senate Officials confirmed that they have not endorsed the GP-66 Form based on their suspicion that the Procurement Regulations, 2007 might have been violated.
• The Committee fully agreed with Deputy Attorney General’s Legal Opinion that the Public Procurement Regulations, 2007 were violated during the first and last evaluation processes. Both Qing Jian Group and China Shanxi Construction were lawfully and rightfully disqualified as reflected in (Annex 4).
• It has to be noted that the Court has made a ruling that the project should not be subjected to a “re-tendering”, in other words there is no way that the project could be subjected to re-tendering without being contemptuous to the court decision or order.
• Contrary to the Court Order lawfully issued by the Judge of the High Court of Lesotho, and without any appeal application lodged before theCourt challenging the order, PS Works made a unilateral decision to order re-evaluation of the tender. This act is by itself tantamount to a bare contempt of Court emanating from a Chief Accounting Officer who is expected to respect and observe the Rule of Law of the land.
• The construction of the Senate project has been in the lull for too long and for no apparent reason, subjecting it to a re-tender is not only a
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defiance to the Court’s directives, but equally a costly endeavour to our weak economy.
• The re-evaluation process undertaken by the Ministry and the seemingly omission of the said ” addendum 1″, is uncalled for act and irregular practice committed on this tender process as correctly cited by the acting Attorney General. - Conclusion and Recommendations In conclusion, the Committee submits this report to this Honourable House for adoption and strongly recommends that the Ministry of Public Works and Transport should proceed with the decision made as per Court Order and award the tender to the preferred bidder Yan Jian Construction as per the recommendation of the first and legitimate evaluation team and tender panel taking into account the contents of the addendum 1 which was signed for by all the companies which were involved in the tender process. Deciding otherwise, would be a clear and straight forward violation and irregular interference to the tender process.
Page 5 of 5 (Annex 1)
List of Committee Members
Hon. M. E. Ramakoae
Hon. T.L. Kibane
Hon. M .P. Maqelepo
Hon. N.B. Moakhi
Hon. M. Senauoane
Hon. M. Tsatsanyane I Hon. M. Fako Hon. L.J. Tau
Hon. L. Mosito
Hon. M. Phafoli
Hon. E. T. Litjobo
Hon. M. Ntlama
Hon. Dr. M .S.Sekatle
Hon. L. Hlalele I Hon . K.J. Moroeng Hon. S.S.Peea
Hon. S. Monatsi
Hon. L. Monaheng
Hon. T. Monyooe
Hon. T. Sekata
Hon .T. Kalake