Court grants RBM stay order in ICT deals case
The High Court on Tuesday put aside a decision of the Public Procurement and Disposal of Assets Authority (PPDA) for the Reserve Bank of Malawi (RBM) to retender the supply and delivery of ICT equipment worth K1.8 billion.
The order by High Court Judge Kenyatta Nyirenda in Lilongwe restricts RBM from proceeding to issue the contracts until the conclusion of hearing of the substantive judicial review case slated for June 18.
Initially, RBM had offered the deals to Market Insights Tracking (Mitra), but another bidder Sparc Systems Limited objected to the decision, arguing that RBM flouted some rules in awarding the contracts, including that the successful bidding firm should have five years experience in the business.
On February 9 this year, PPDA Review Committee then ordered RBM to retender part of the ICT contracts, a decision that prompted the Central Bank to seek the intervention of the court to ascertain the correctness, legality and propriety of the Review Committee’s determination.
But in his ruling on Tuesday, Nyirenda said he was satisfied that RBM had raised an arguable case in the matter.
“Having considered the evidence before the court as gathered from the sworn statements and the submissions by both sides, it is clear that the claimant [RBM] is questioning the correctness, legality and propriety of the defendant’s [PPDA Review Committee] decision, faulting the claimant’s procurement process regarding two ICT projects.
“I am satisfied that the claimant has raised an arguable case on the questions that it has. Where such a situation obtains, the balance of justice tilts in favour of granting an order of stay unless there are sufficient reasons for not doing so,” he said.
Nyirenda cited a case of Attorney General versus Sunrise Pharmaceuticals and another (2013) wherein the Malawi Supreme Court of Appeal stated that “where legality, regularity and excess of a judgement are in issue, they constitute sufficient reasons for granting a stay”.
He said despite spirited submissions from the other party, he was not persuaded that a case good enough had been advanced to warrant departure by the court from the legal position set out by the Supreme Court of Appeal in the case of Attorney General versus Sunrise Pharmaceuticals and another.
“In short, this court is bound by that decision in the circumstances of this case.
“The order of stay is, accordingly, granted. The stay order will be valid until the main case is determined or until a further order of the court,” he ruled.
In May 2020, RBM invited bids for the supply and delivery of ICT hardware for flexcube upgrade and ICT hardware for Automated Transfer System.
On November 16 2020, RBM published an intention to award both contracts to Mitra Systems.
