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P24 million tender lands BPC in court

Acting BPC CEO: Edward Rugoyi

A local company, Drift In Investments (Pty) Ltd has dragged Botswana Power Corporation (BPC) before Justice Modiri Letsididi at Lobatse High Court. Through an urgent application, the company wants the state-owned power utility to show cause why certain orders should not be made final.

The Drift In Investments wants BPC to be ordered, interdicted and restrained from proceeding any further, with the award of tender no 4142/20 for various meters pending; the finalisation of the Applicant’s application for review of the respondent’s (BPC) decision to annul the tender and the finalisation of the Applicant’s application for review which awaits hearing.

In February this year, Drift In Investments submitted a bid to be awarded supply and delivery of single (1) phase and three (3) phase integrated GPS based STS prepayment smart meters with open standard communication protocols that was advertised as tender number 3890/19.
The tender in question was an open tender, which means all interested bidders could bid for it, including Drift In Investments.

The bid was duly evaluated and adjudicated by BPC’s procurement committee, the Executive Procurement and Tender Committee. Such evaluation and adjudication were preceded by the recommendations of the best evaluated bidder, who will proceed to sign a contract to offer such services.  According to Drift In Investments’ founding affidavit “attached hereto is a copy of the evaluation and adjudication report which placed the Applicant as the best bidder, hence the legitimate expectation, that mutatis muntandis, that it would sign the contract”.

Drift In Investments was the best bidder and was approved to be awarded to the tender at BWP 14 442 660, to supply and deliver a single phase split smart meters. Furthermore, Drift In Investments was awarded for the supply and delivery of Customer Interface Units (CIU’s) for an amount of P10 343 070.00.  “When these recommendations and approvals were to be effected, in a rather strange turn of events, the respondent somersaulted and nullified the tender. On minutes from the EXCO Procurement and Tender Committee, a request was made to the aforesaid committee to nullify the tender and bring it back as a selected tender,” court papers indicate.

The reasons stated were that the tender was cancelled because “the Corporation has taken a position to directly work with the reputable manufactures/ suppliers of smart meters that have the necessary expertise required in the implementation of a SMART GRID SOLUTION that the Corporation is embarking upon”.  The nullification was granted, and time was not wasted in listing the bidders for selective tendering. One of the listed bidders for manufactures/ suppliers of the split smart meters is Landis & Gyr which had been listed as the supplier to the Drift In Investments in the nullified tender.

BPC had commended the bid by Drift In because it had the above stated company (Landis & Gyr). “Drift In split smart meters sourced from Landis & Gyr have been supplied to BPC before and the performance is good. Besides the split smart meters, Landis & Gyr has got a good performance record also on the Maximum Demand (MD) meters and ordinary non smart meter BEC previously supplied to BPC for quite a number of years”.

According to the founding affidavit it came as a surprise then on the 22nd May 2020 when Drift In Investments was given a letter dated 18th May 2020 which corroborated the aforestated minutes that the said tenders were nullified.  The letter reads, “Please be advised that at its sitting of the 11th May 2020, the EXCO Procurement and Tender Committee approved the recommendation to nullify the above tender. We wish to take this opportunity to thank you for showing interest in doing business with the Corporation and assure you of our cooperation at all times”.

The founding affidavit contend that there were no basis whatsoever for cancelation of the tender which was floated publicly to a select tender when all the requirements had been met, only to turn around and chuck the bidders.  According the founding affidavit the cancellation was unlawful on the reason that; the procurement in BPC is done through a three tier system. It passes through evaluation, and the evaluation committee makes recommendations to the adjudication system, ultimately reaching the board for certain tenders.

Again there are various boards dealing with various tenders varying in the amounts. Each level of evaluation has a limit to the tender it can evaluate based on the value of the tender.  The present tender that the applicant is querying or had made a bid for, amounted to more than 10 million Pula. From its own admission, and the papers filed of record, the evaluation was carried out by the Executive Procurement and Tender Committee.

Drift In Investments also argues that in terms of the regulations of the Respondent of Procurement, the threshold for the Executive Procurement and Committee (EPTC) are amounts between P500 000.00 to P3.5 million.  The tender having been in excess of 10 million, the EPTC clearly stepped out of its mandate. It was not competent to deal with tender by adjudicating the same, therefore acting ultra vires their mandate/ authority.  “Such a decision is liable to be reviewed and set aside as it is unlawful, irrational and illegal.

I reiterate my averments further that save via this present Urgent Application, there is no facility under our law to obtain a stay execution of the Tender herein whilst the Application asserts its challenge against the adjudication of the same”.  While appearing before Justice Modiri Letsididi on few weeks ago, attorneys representing BPC from Armstrongs Attorneys said they were only served with court papers in the morning therefore pleaded with the court to be given some time to prepare and file their opposing affidavit.

Both lawyers met briefly and agree that it was short notice and that the court set a new date where the urgent matter and the review application will be heard.  Justice Modiri Letsididi advised that the new rule states that all matters dealing with tenders by nature are urgent because they are dealing with a lot of money that affects the economy.

Earlier on, BPC attorneys had urged that the tender in question is a different tender from the initial one something that was denied by the defence lawyers.  The matter has been ordered a status quo while the new dates were set for 6th November 2020 while the court will hear both the urgent matter and the review application.

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Seretse, Kgosi may walk free

30th October 2020
BAKANG SERETSE

The P250 million National Petroleum Fund (NPF) saga that has been before court since 2017 seems to be losing its momentum with a high possibility of it being thrown out as defence lawyers unmask incompetency on the part of the Directorate of Public Prosecution (DPP).

The Gaborone High Court this week ruled that the decision by the State to prosecute Justice Zein Kebonang and his twin brother, Sadique Kebonang has been reviewed and set aside. The two brothers have now been cleared of the charges that where laid against them three years ago.

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Understanding the US Electoral College and key election issues 

28th October 2020
Mark J Rozell

The United States (US) will on the 3rd of November 2020 chose between incumbent Donald Trump of the Republicans and former Vice President Joe Biden of the Democrats amid the coronavirus pandemics, which has affected how voting is conducted in the world’s biggest economy.

Trump (74) seeks re-election after trouncing Hillary Clinton in 2016, while Biden (77) is going for his first shot as Democratic nominee after previous unsuccessful spells.

US Presidents mostly succeed in their re-election bid, but there have been nine individuals who failed to garner a second term mandate, the latest being George W H. Bush, a Republican who served as the 41st US President between 1989 and 1993.

Dr Mark Rozell, a Dean of  the School of Policy and Government at George Mason University  in  Arlington, Virginia describes the complex US electoral system that will deliver the winner at the 3rd November elections.

“The founders of our Republic de-centralised  authority  significantly  in  creating  our  constitutional  system,  which  means that  they  gave  an  enormous  amount  of  independent  power  and  authority  to  State  and  local governments,” Dr Rozell told international media on Elections 2020 Virtual Reporting Tour.

Unlike  parliamentary  democracies, like Botswana the  United  States  does  not  have  all  of  the  national government elected in one year. They do not have what is commonly called mandate elections where  the  entire  federal  government  is  elected  all  in  one  election  cycle  giving  a  “mandate”  to  a particular political party to lead, and instead US have what are called staggered elections, elections over time.

The two house Congress, members of the House of Representatives have two-year long terms of office. Every two years the entire House of Representatives is up for re-election, but senators  serve  for  six  years  and  one  third  of  the  Senate is elected every  two  years.

For this election cycle, US citizens will be electing the President and Vice

President, the entire House of Representatives and one third of the open or contested seats in the Senate, whereas two thirds are still fulfilling the remainder of their terms beyond this year.

An  important  facet  of  US electoral  system  to  understand  given  the  federalism  nature  of  the republic, the US elect presidents State by State, therefore they do not have a national popular vote for the presidency.

“We have a national popular vote total that says that Hillary Clinton got three million more votes than Donald Trump or in Year 2000 that Al Gore got a half million more votes than George W. Bush, but we have what is called a State by State winner takes all system where each State  is  assigned  a  number  of  electors  to  our  Electoral  College  and  the  candidate  who  wins  the popular vote within each State takes 100 percent of the electors to the Electoral College,” explained Dr Rozell.

“And that is why mathematically, it is possible for someone to win the popular vote but lose the presidency.”

Dr Rozell indicated that in 2016, Hillary Clinton won very large popular majorities in some big population States like California, but the system allows a candidate to only have to  win  a  State  by  one  vote  to  win  a  100 percent of  its  electors,  the  margin  does  not  matter.

“Donald  Trump  won  many  more  States  by  smaller  margins,  hence  he  got  an  Electoral  College majority.”

Another interesting features by the way of US constitutional system, according to Dr Rozell, but extremely rare, is what is called the faithless elector.

“That’s the elector to the Electoral College who says, ‘I’m not going to vote the popular vote in my State, I think my State made a bad decision and I’m going  to  break  with  the  popular  vote,’’ Dr Rozell said.

“That’s constitutionally a very complicated matter in our federalism system because although the federal constitution says electors may exercise discretion, most States have passed State laws making it illegal for any elector to the Electoral College to break faith with the popular vote of that State, it is a criminal act that can be penalized if one is to do that. And we just had an important Supreme Court case that upheld the right of the states to impose and to enforce this restriction”

There are 538 electors at the Electoral College, 270 is the magic number, the candidate who gets 270 or more becomes President of the United States.

If however there are more candidates, and  this  happens  extremely  rarely,  and  a  third  candidate  got  some electors  to  the  Electoral  College  denying  the  two  major  party  candidates,  either  one  getting  a majority, nobody gets 270 or more, then the election goes to the House of Representatives and the House of Representatives votes among the top three vote getters as to who should be the next President.

“You’d have to go back to the early 19th century to have such a scenario, and that’s not going to happen this year unless there is a statistical oddity, which would be a perfect statistical tie of 269 to 269 which could happen but you can just imagine how incredibly unlikely that is,” stated Dr Rozell.

BLUE STATES vs RED STATES

Since the 2000 United States presidential election, red states and blue states have referred to states of the United States whose voters predominantly choose either the Republican Party (red) or Democratic Party (blue) presidential candidates.

Many  states  have  populations  that  are  so  heavily  concentrated  in  the  Democratic party or the Republican party that there is really no competition in those states.

California is a heavily Democratic State, so is New York and Maryland. It is given that Joe Biden will win those states. Meanwhile Texas, Florida and Alabama are republicans. So, the candidates will spent no time campaigning in those states because it is already a given.

However there are swing  states, where  there is a competition between about five and 10 states total in each election cycle that make a difference, and that is where the candidates end up spending almost all of their time.

“So  it  ends  up  making  a  national  contest  for  the  presidency  actually  look  like  several  state-wide contests with candidates spending a lot of time talking about State and local issues in those parts of the country,” said Dr Rozell.

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Masisi to make things right with Dangote

26th October 2020

High Commissioner of the Federal Government of Nigeria to Botswana, His Excellency Umar Zainab Salisu, has challenged President Dr Mokgweetsi Masisi to move swiftly and lobby Africa’s richest man, Nigerian Billionaire, Aliko Dangote to invest in Botswana.

Speaking during a meeting with President Masisi at Office of President on Thursday Zainab Salisu said Dangote has expressed massive interest in setting up billion dollar industries in Botswana.  “We have a lot of investors who wish to come and invest in Botswana , when we look at Botswana we don’t see Botswana itself , but we are lured by its geographic location , being in the centre of Southern Africa presents a good opportunity for strategic penetration into other markets of the region,” said Salisu.

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