- Tussle over K6.8bn contract
- Kamoto accuses ACB of harassing him
- ACB drags Mera to court over contract
The award of a K6.8 billion contract to Terrastone Limited to construct a Mera office complex has become the centre of conflict between Mera and ACB with the former complaining to the Attorney General (AG) of harassment and abuse of power and forcing Mera to award the contract to Sogecoa.
But the ACB boss Lucas Kondowe has shot back, saying he does not know Sogecoa and parried Mera’s allegations that he wants it to be given the contract.
Kondowe has also faulted the AG for giving him orders about when to resolve the matter, saying as an independent body, ACB does not take orders from anyone.
In a letter reference number Mera/admin/18/13 that Weekend Nation has seen, Mera chief executive officer Kamoto informed AG Kalekeni Kaphale that a senior ACB official is harassing him and abusing his powers.
Kamoto explained in the letter that Mera invited and obtained bids for the construction of the office complex and obtained a ‘No objection’ from the director of Office Public Procurement (ODPP) to award the contract to Terrastone.
“A few days later, a senior officer of the ACB called and told me to cancel the award and give it to Sogecoa; otherwise, I would burn my fingers and he would put the whole process in ‘neutral gear,” Kamoto said.
He further indicated to Kaphale that the ACB senior official kept on harassing him by constant telephone calls between April 15 2016 and April 26 2016.
Said Kamoto: “He called me to meet him on April 26 2016, when the ACB issued a restriction notice, stopping the contractor and Mera from proceeding with the construction works.”
He said the ACB argued that they had received a complaint that Kamoto had “unilaterally awarded the contract” and asked for all relevant documents for the procurement.
“Now, 90 days later, the restriction notice is supposed to expire in line with the law. However, the ACB in its quest to put the project ‘in neutral gear’ has gone to the Chief Resident Magistrate’s Court to seek an extension of the restriction notice to allow themselves more time to interview officers at Mera and ODPP,” he said.
“Kindly note that continued delays on the project are costly to Mera as a public institution and we believe personal interests should not be above the national interest. I write to you as an aggrieved person and harassed public officer. I seek your guidance and advice on the matter,” reads the letter.
Hearing of the matter at the Chief Resident Magistrate’s Court took place on August 2 2016 and the court is expected to rule on August 12 2016.
On April 26 2016, Kondowe wrote to Kamoto demanding to produce or furnish, within 72 hours of service of the notice all original documents and certified true copies of all documents which were in Kamoto’s possession or under his control.
“[Submit] any other information that is in your possession or control which the Bureau considers necessary for the conduct of an investigation into an alleged or suspected offence under Corruption Practices Act. Non-compliance with this notice will amount to an offence under Section 49A of the Corruption Practices Act,” reads the summons under Case number: CR/LL/125/2016.
The demanded documents included all internal Procurement Committee minutes, all bid documents and evaluation reports for the award of the contract to construct the Mera headquarters building in Lilongwe.
In an interview with the Weekend Nation on Thursday, Kaphale said: “I may not competently comment as it is still unfinished business.”
However, in reference to Kamoto’s complaint, Kaphale wrote Kondowe in a letter reference Ref No. MJCA/AG/022 dated July 5 2016 suggesting to him to make his decision on the case by mid August 2016.
“I am in receipt of the attached letter from the Malawi Energy Regulatory Authority (Mera). As the Restriction Notice dates back to April, I trust your office is about to conclude its investigations and shall soon either seek consent for prosecution from Director of Public Prosecutions or withdraw the Restriction Notice.
“By the way, I hope it will be borne in mind that the Bureau cannot force a public body to enter into a contract with a particular third party; statutorily the Bureau’s role being restricted to civic education, investigations and prosecution of corruption offences. Further, I trust the Bureau recognises that Mera did not bind itself to accept the lowest bid. These considerations should not be lost in the Bureau’s mind as it decides the way forward on this particular case,” reads Kaphale’s letter to Kondowe.
Said Kaphale: “It is imperative that either of these takes place soon as a contract of public works was already executed and Mera is exposing itself to legal suit and financial loss (due to price fluctuations) the longer it takes for your office to make up its mind on the way forward.”
On April 5 2016, Mera in a letter reference number Mera/2/9 sought the consent of the ODPP to engage Terrastone to construct the office complex at ta cost of K6.8 billion after Mera’s internal procurement committee (IPC) had met on April 4 2016 to consider an evaluation report on the above subject matter.
“Attached to this letter are minutes of the IPC meeting which made the recommendation, a copy of an evaluation report, copies of bidding documents from bidders, a copy of bidding documents which was sent to bidders, a copy of bid opening register, and the minutes of the meeting are attached for ease of your reference,” said the letter from Mera.
“The purpose of writing this letter is to seek your approval for Mera to award the above construction of K6 813 976,434.06 at a total construction period of two-and-a-half years. The above sum is inclusive of a contingency sum of 10 percent, NCIC [National Construction Industry Council] levy at one percent and 16.5 percent VAT [Value Added Tax],” reads the letter seeking the ‘No Objection’.
And Timothy Kalembo, on behalf of the ODPP in Reference number ODPP/03/279 on April 7 2016 wrote Mera: “We wish to inform you that this office has granted its ‘No Objection’ for you to proceed granting the contract of procurement of works for the construction of the Mera office complex to Terrastone Limited. You may now proceed contracting the successful bidder and please ensure that all requirements and procedures befitting a public procurement contract are complied with.”
ACB has since gone to court to extend the Restriction Notice for another 90 days on Terrastone and for Mera not to continue with the construction of the office complex, and the matter is before Chief Resident Magistrate Court.
The Mera CEO told the AG that they will contest the matter in court.
“The reasons given are lame, but ACB wants to continue to abuse its position when simple investigations showed that I did not unilaterally award the said contract,” wrote Kamoto.
Issue dates back to two years ago—ACB
Kondowe in an interview with Weekend Nation on Thursday said the controversy over the Mera contract dates back to two or so years ago when the first tender on the contract was won by SR Nicholas before it was cancelled.
He explained that when the effort to build the office complex was revived, Mera sought advice from ACB on whether SR Nicholas can participate in the subsequent tendering of the project as Mera had heard that ACB was investigating the construction companies.
Kondowe said he advised Mera that there was no reason to deny SR Nicholas an opportunity to participate in the bid because the ACB investigations had not been concluded.
“The next thing that happened was that we got an anonymous letter, alleging that the subsequent (tendering) process, where Terrastone won the contract, was not done fairly. There was an allegation of money changing hands and a few days later we received another letter from Sogecoa also complaining about the tender process so we said let’s look into it. Let’s understand what happened.
“I spoke to Mera CEO and the then director of Public Procurement to understand what happened. There were people who were rushing this thing and the only way for us to slow down the process was to issue a restriction order under the Corruption Act,” he said.
Kondowe further said ACB around the first week of July this year received another letter from Mera inquiring whether the investigations were concluded, saying any delays would make the contract more expensive.
“We responded that we cannot be pushed. When we reviewed the Mera file, we realised that there were lots of questions and my team informed me that the restriction order was expiring, so we went to court for an extension,” he said.
He said as ACB they do not have a time-line on investigations, saying some might take over a year or so.
“The Mera case is strange. It is the first time that we see an entity subjected to a restriction is fighting back. Obviously, Mera seems to be very interested in speeding up things. Of course, we agree that delays can have an impact on the cost of the project, but it is very important for us to make sure that the right job is done. It is better to prevent things from happening,” said.
On allegations about harassment, Kondowe said it beats logic that Mera complained to the AG about an unknown officer three months after the said offence was said to have been committed.
He also faulted the AG for making suggestions without consulting his office after receiving the letter of complaint.
On the AG’s response, Kondowe said being a serious allegation, he should have been consulted before acting.
“The Attorney General should have called us and try to hear our story before advising anyone,” he said.
Malawi Law Society president John Suzi-Banda in an interview yesterday backed Kondowe on the bureau’s independence. “The Director is probably correct. Section 4 (3) of the Corrupt Practices Act is rather unambiguous, we think. It provides as follows:- ‘The Bureau shall exercise its functions and powers independent of the direction or interference of any other person or authority,” he said.