The North West department of public works, roads and transport this week could not say what its next step will be after contractor Tau Pele Construction was ordered to leave the construction site through a court order obtained by losing bidders Roucomm Systems.
Roucomm approached the North West High Court in Mahikeng with claims that the process followed to award the contract to Tau Pele Construction was irregular.
Among the issues Roucomm raised was that Tau Pele construction did not have a tax certificate at the time of bidding. The department of public works presented a copy of the company’s tax clearance certificate to the Mail & Guardian on August 19 for the period ending February this year.
Roucomm owner Ralph Mabe’s lawyer, Martin Pretorius, said the tax certificate did not exist at the time the court adjudicated on the matter.
“It was common purpose in court that certain documents were not lodged with the tender. If they were found later then it might be so.”
The M&G’s questions to the department had not been answered by the time of going to print.
The department's performance
Roucomm also decried the fact that Tau Pele submitted an invalid broad-based black economic empowerment certificate as part of its bidding documents.
The department knew this, but the bid adjudication committee chose to give the contractor a second chance and deducted points from it.
“Subsequent to the revised broad-based BEE points from six to five, the committee reviewed the broad-based BEE certificate from Tau Pele Construction and noted that it has expired and, as a result of that, the points awarded will therefore be revised from five to zero,” read minutes of the committee’s meeting dated December 13 2012.
In addition to this, Roucomm raised unhappiness that a company that was under business rescue was awarded a R72.5-million contract.
“The department was not aware of the rescue plan at the time the tender was issued,” said a department official who did not want to be named because employees were not given a mandate to give a response.
This raises questions of how well the department performed its duties of doing background checks on the prospective contractor.
The department also offered an upfront payment of R7.2-million, apparently to “assist the contractor in establishing site”, said the official.
Pay before work was done
The contractor did not initiate this transaction or ask for financial help, but the department’s acting spokesperson Wandi Tong told the M&G last week that this payment was “in line with the contract and treasury regulations”.
In documents that the M&G has seen, it’s clear that the department offered to pay before work was done.
Though the meeting records indicate that this money would be deducted from payments to Tau Pele, the M&G’s request for proof of this payment had not been responded to at the time of going to press.
The politics behind tenders
The Lichtenburg-Koster road tender dispute has brought to light the politics lurking behind tenders of this nature. In the minutes of the North West department of public works’ bid adjudication committee meeting, a member of the committee told his colleagues that Ralph Mabe of the losing bidder Roucomm Systems had warned him about Tau Pele’s submission of “false documents” and also that the company was “selected by certain leadership in the province”.
The minutes say that “names will be disclosed at a later stage”. Mabe’s lawyer Martin Pretorius said it was the first time that he had heard about the allegation against his client. Allegations like these have pitted the provincial executive against the legislature and laid bare the battle for control of the province between two ANC factions. Four ANC members of the provincial legislature told the Mail & Guardian that MECs who unsuccessfully sought change of leadership at last year’s Mangaung party leadership conference disregarded the legislature.
Until two months ago, the executive was dominated by pro-change ANC members. A June reshuffle gave the pro-Jacob Zuma faction four MEC seats, but they have less influence. The provincial legislature, led by speaker Supra Mahumapelo, who doubles as ANC provincial chairperson, is where you find the majority of supporters of the current ruling party leadership. Turn to the provincial government executive, and pro-change leaders have the upper hand.
Premier Thandi Modise, who leads the executive, is one of those who preferred former ANC deputy president Kgalema Motlanthe to become party president. Last week, public works MEC Raymond Elisha failed to appear before the portfolio committee to answer questions related to the Lichtenburg-Koster road. It wasn’t the first time that he failed to honour an invitation, said the committee’s chairperson, Hoffman Galeng. “As always they refused to present to us,” he said.
Escalating costs
​Galeng said the committee wanted answers on the incomplete road, legal battles that the department has been losing and on the escalating costs of the project. “Last year alone, he [Elisha] went to court five times just on that road. This year he went twice,” said Galeng. “He’ll never tell you about a single case he’s won in court. I told him: ‘Elisha you don’t have a case; find a way to resolve this matter.’”
But Elisha’s office defended him. “MEC Elisha recognises the portfolio committee and any other committee of the legislature as an important part of political oversight, leadership and capacity building,” said his department’s acting spokesperson Wandi Tong. The M&G has seen a letter cancelling Elisha’s appearance before the committee. It was delivered about 24 hours before the scheduled meeting. Though committees in the North West legislature have been applauded for their efforts to hold the executive to account, analysts have warned against using the legislature to settle political scores.
The construction of the road first made news when the department fired its first contractor, Kaulani Civils. However, it was the removal of the second contractor, Down Touch Investments, that exposed the multimillion-rand controversial tender wars around this road. Losing bidder, Globul Roads, told the court that the tender was awarded irregularly. While the court found no fault on the part of Down Touch, the company was stopped from continuing work by the provincial government. There were also legal costs and maintenance costs when work was suspended on the road. This, two members of the portfolio committee said, increased the road’s costs to over R230-million.