The legal battle between Centre of Clinical Excellence (a subsidiary of Boitekanelo Group of Companies) and the University of Botswana (UB) over the cancellation of a three-year catering services tender at the Gaborone campus started before Lobatse high court judge Godfrey Nthomiwa on Thursday afternoon. Boitekanelo is suing UB for cancelling the P45 million tender it had won, claiming to what have discovered some irregularities in the adjudication process. An appointment letter dated February 25, 2016 from one Davies Tsele – Secretary UB Finance Committee – had notified Tiro Mampane, the Managing Director of Boitekanelo of the award. UB claims to have discovered some irregularities after Independence Tarven, trading as The Moghul, had successfully interdicted the award of the tender, citing glaring bias in favour of Centre of Clinical Excellence (Boitekanelo). Centre for Clinical Excellence was previously registered as Boitekanelo Catering Services, a subsidiary of Boitekanelo Group of Companies - the owners of Boitekanelo College. Boitekanelo is seeking an order compelling UB to prepare and deliver a written contract for its signature, arguing that the cancellation of the tender by UB is unlawful, without basis and is therefore invalid because they were never afforded a hearing before a decision adversely affecting them was taken. It has since emerged that a letter dated 11 May 2016 purporting to cancel the award for Boitekanelo was not preceded by a meeting of the Finance Committee, which only took place on May 19. Yet another letter was dispatched on May 30, cancelling the entire tender on the basis that the whole tendering process was tainted by the non-recusal of a key member who had declared interest at the initial stages of the evaluation process. UB said the cancellation was based on the non-recusal of then UB Deputy Vice Chancellor Professor Lydia Saleshando. Boitekanelo argues that the university has waived the right to withdraw the award because the tender evaluation committee permitted Prof Saleshando to take part in the adjudication process knowing that she had an interest in one of the tendering companies. The company argues that the irregularity that formed the basis of the cancellation is not supported by any of UB's governing statutes. Boitekanelo argues that tender regulations are not applicable to Prof Saleshando because she is not a member of the tender committee, and further that specific regulations of the Tender Regulations requiring recusal of an individual after declaring an interest contravene the University of Botswana Act in so far as it does not give a discretion to permit a conflicted member to take a further part in the adjudication process. Failure to hold a meeting prior to making a decision to cancel the tender through a letter of May 11 is also used by Boitekanelo in support of their argument that such decision is invalid. And lastly Boitekanelo contend that the Finance Committee exceeded its powers in that it took the decision to cancel the tender when such authority is vested in the tender committee.
Conflict of interest
On 26 April 2016 Justice Dr Zein Kebonang issued an order restraining the implementation of the contract, pending a review application to be launched by Moghul. On the verge of the argument of the review application UB informed court that it had cancelled the award of the tender to Boitekanelo due to irregularities discovered in the evaluation process. Boitekanelo had been awarded catering for Block 121 Refectory. Moghul argued further that such revelation by UB meant that the other two catering contracts already awarded to Eastern Delights (Block 130 Refectory) and Executive Catering (Staff Cafeteria) are invalid and should be set aside. Moghul CEO Ahmad Mansur Siddiqi argued in the interdiction that Saleshando – who chaired adjudication committee meetings for the tender – was conflicted in that her step son Gagoitsewe Saleshando is a 35 % shareholder (Dr Tiro Mampane also owns 35% shares) in the company – Centre of Clinical Excellence. The other 10% is held by Batho Motubudi. It later emerged that although Ramahobo had declared interest in some of the adjudication meetings and was allowed by other committee members to continue chairing the proceedings, she failed to declare such interest in other subsequent meetings. By the time she stopped chairing the proceedings about nine companies had been disqualified at different stages of tender evaluation. She retired in November 2015. Moghul argues that even if Saleshando had declared interest in some of the meetings, other committee members had no powers to allow her to continue to sit as that authority rests with the University Council. Siddiqi also alleges that the inordinate delay to conclude the adjudication process was deliberate to await proper incorporation of Boitekanelo Catering Services, which happened on 18 March 2016, the very day that UB informed Moghul that they had lost the tender and the departure of Saleshando to avoid appearance of conflict. Boitekanelo Catering Services, which had been awarded the tender had apparently been wound up on 6 November 2015, and Centre for Clinical Excellence only incorporated on March 18, 2016. The latter was going to be used to execute the tender despite not being qualified (experience and reputation) or ever being involved in the tender process, Siddiqi argues. This therefore, according to Siddiqi, means Boitekanelo (or Excellence) are new entrants in the catering industry and was virtually unknown in the industry prior to 2015, and therefore did not have the requisite established reputation and experience required by the UB tender. He says notwithstanding such glaring omission the adjudication committee chaired by Saleshando favoured and allowed Boitekanelo to proceed to the subsequent stages of evaluation and was awarded the tender in the end. The case continues in June.