The Reserve Bank of Malawi (RBM) wants the High Court to suspend enforcement of a August 23 judgement which ordered the central bank to retender the K1.8 billion equipment and ICT hardware for Flexicube procurement contract.
A sworn statement filed at the Lilongwe District Registry of the High Court on October 19 by Francisco Chikabvumbwa of Mbendera and Nkhono Associates shows that RBM is not satisfied with the judgement delivered by High Court Judge Kenyatta Nyirenda for the bank to retender contracts for the supply and delivery of information and communications technology (ICT) equipment for automated transfer system (ATS) and contract for supply and delivery of ICT equipment and Flexicube upgrade.
RBM argues that the retender of the two contracts as ordered by the High Court can end up being impracticle for the central bank or cause real financial and other prejudice to the bank.
Reads part of the sworn statement: “This is due to the fact that the following equipment under the ATS tender procurement reference number RBM/ICT/008/20) has been withdrawn from the market and cannot, therefore, be sold to anyone i.e. Storage Area Network Switch Model Number IBM San Switch San24B-5 and Storage Model Number IBM V7000 all flash.
“This, therefore, means that if any tenders are to be done by the bank, the tenders cannot exactly be the same as the initial tender in that now alternative equipment must be procured which will have different specifications.”
In its opposition to the application to suspend the judgement, Public Procurement and Disposal of Assets Authority, whose Review Committee is the defendant in the case, argued that contrary to allegations by RBM, the court order to retender did not amount to the court making a procurement decision for RBM.
PPDA in a sworn statement filed by Timothy Kalembo argues that RBM is aware that where its needs have changed due to technological advancements, it has to revise the specifications defined in the initial procurement and then the same will be drafted in the bidding documents so that the suppliers should comply with the revised specifications.
Kalembo said doing that does not render procurement re-tender impractical.
In his submissions, Sparc Systems Limited managing director Wisely Phiri, who is first interested party in the matter, argues that changes in the specifications will not change the nature of the tender.
He said: “What the claimant [RBM] has wanted to procure has been the procurement of ATS as well as Flexicube equipment. This ICT equipment has got different components such as servers and switches.
“If the specifications of these are changed, the nature of the ICT equipment itself will not change as the claimant is erroneosly presenting.”
He also argues that the equipment will not be obsolete as claimed by RBM.
In their submisssions, Mitra Systems, which is second interested party in the matter, says it believes the court should exercise its discretion to stay and suspend or stay the enforcement of the judgement pending trial.
Late last year, RBM offered the ICT deals to Mitra, but on February 9 this year, a PPDA Review Committee faulted the way the central bank handled the tender and ordered RBM to retender part of the ICT contracts.
The development prompted RBM to seek the intervention of the court to ascertain the correctness, legality and propriety of the Review Committee determination.
In his judgement, Nyirenda upheld the decision of PPDA and also nullified the award of all lots of the deal and ordered RBM to retender them. Kenyatta also ruled that only those firms that bidded last time should bid and that only those that qualify should be evaluated.