SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Botswana: Court of Appeal

You are here:  SAFLII >> Databases >> Botswana: Court of Appeal >> 2006 >> [2006] BWCA 2

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Public Procurement and Asset Disposal Board and Another v Researched Solutions Integrated (Pty) Limited and Others (Civil Appeal No. CACLB 56 of 205) [2006] BWCA 2 (27 January 2006)

PDF of original document.PDF of original document

.RTF of original document


IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Court of Appeal No. CACLB 056 of 2005 High Court Case No. MISCA 100 of 2004
In the matter between
THE PUBLIC PROCUREMENT AND ASSET
DISPOSAL BOARD   APPELLANT
AND
RESEARCHED SOLUTIONS INTERGRATED
(PTY) LIMITED    1ST RESPONDENT
THE ATTORNEY-GENERAL OF BOTSWANA 2ND RESPONDENT (Acting for and on behalf of the Department of Immigration)
IBS-IT (PTY) LIMITED     3RD RESPONDENT
INNOVATIVE BUSINESS SOLUTIONS
(PTY) LIMITED    4TH RESPONDENT
CBS (PTY) LIMITED        5TH RESPONDENT
Lobatse, 20 and 27 January 2006
Mr. Peter Collins and Mr. John Peter for the appellant. Mr. Redding and Mr. Vivian for the first Respondent Mr. Modisane for the second respondent
JUDGMENT
CORAM: TEBBUTT JP McNALLY JA LORD COULSFIELD JA
LORD COULSFIELD
1. The background to this dispute is, very briefly, that on 2 October 2002, the Department of Immigration of the Republic of

Botswana ("the Department") issued an invitation to tender for the computerisation of the country's border posts and passport issuing centres. As is required by the statutory provisions set out below, the tender invitation was approved by the appellant ("the Board"). Eight companies responded and an evaluation committee was set up to advise the Department. After various investigations, the committee recommended that the contract should be awarded to the first respondent, Researched Solutions Integrated (Pty) Ltd. The first respondent was formerly known as AST Botswana (Pty) Ltd and, notwithstanding the change of name, it is convenient to continue to refer to them as "AST". The committee's recommendation was, however, not approved by the Board, who, on 6 November 2003, instructed the Department to accept the tender of the third respondent, IBS-IT (Pty) Ltd ("IBS"). AST commenced these proceedings on 4 March 2004. There followed several applications and counter-applications to do with lodging and objecting to affidavits and other documents. These steps in the procedure have a bearing on the view which the judge took on one of the main issues in the case, but I shall examine them later. Certain further affidavits have been lodged since the decision of MARUMO J., and it will be necessary to make some reference to them in due course. The case finally came before MARUMO J. in the High Court. On 25 November 2005 he made an order by which he (1) set aside the decision of the Board to
2

award the tender to the third respondent: (2) ordered the appellant to award the said tender to the first respondents: and (3) ordered the Board to pay the costs of the main application. The Board have appealed against these orders. The Attorney-General was represented at the hearing of the appeal, but took no active part in the proceedings: it had previously been intimated that the Attorney-General would abide by the decision of the court. IBS, despite their interest as successful tenderers, have never taken any part in the proceedings, nor have the fourth and fifth respondents, who were among the original tendering companies.
2. The powers and functions of the Board.
The Board was constituted under the Public Procurement and
Asset Disposal Act 2001 ("the Act"). In terms of section 3, the
Act applies to, among others, all entities of the central
government which are involved in public procurement. For the
purposes of this appeal, it is important to look in some detail at
the powers and functions of the Board which are defined in Part
V. Part V includes the following provisions:
"26. Unless otherwise provided for in this Act or any other enactment, the Board shall ensure that all public procurement and asset disposal agencies, in making their decisions, take into account the principles of -
(a) an open, competitive economy ....
3

(b)    
standardisation of procurement items in the interest of cost reduction, ease of maintenance      and      technological effectiveness;
 (c)    
aggregation of procurement and
disposal activities      in order to benefit
from economies of scale;
(d)    
competition among contractors by using the most efficient and competitive methods of procurement or disposal to achieve the best value for money;
(e)    
fair and equitable treatment of all contractors in the interest of efficiency and the maintenance of a level playing field;
(f)    
accountability and transparency in the management of public procurement and in the disposal of public assets in order to promote ownership of the system and minimise challenges thereto; and
(g)    
integrity, fairness of and public confidence in, the procurement and disposal process.

27.    
The Board shall ensure that all procuring and disposing entities comply fully with all provisions of the Act, irrespective of the means of procurement, disposal, or the assets to be procured or disposed of.
28.    
The Board shall advise procuring and disposing entities on all aspects of procurement and disposal management and particularly on the application and provisions of the Act."
There follow several sections which make more detailed provisions about some aspects of procurement. Section 29 directs the Board to prepare standardised bidding packages, to
4

be used by all procurement entities. Section 30 deals with
national standards and section 31 permits the Board to make
exceptions from sections 29 and 30 in certain circumstances.
Section 32 provides:

"32. (1) The Board shall examine instructions and the conditions of contract contained in each bidding package prior to the issuing of a Tender Notice, and more generally, review and assent to any specific part, or the whole of the bidding package, and obtain changes where these are deemed by the Board to be necessary before they are issued to bidders.
(2) The Board shall ensure that the instructions and conditions of contract in bidding packages are congruent with the Act."
Sections 33 and 34 deal with amendment of a bid package and the legal status of correspondence. Sections 35 to 37 provide: -"35. (1) Procuring and disposing entities shall -
(a)    
in all bid packages, provide for instructions, the criteria to be used in the evaluation process, the value and weights to be attached to each criterion, and the evaluation procedure or methodology to be followed in the conduct of the evaluation; and
(b)    
establish which procurement methods and procedures shall apply in each case and class of bids, except in emergencies when either sole procurement or competitive negotiations methods and procedures may apply.
5

(2)    
Only substantially responsive bids shall be considered for comparison, evaluation, adjudication and award.
(3)    
The issuing of a bid or an invitation to tender for a procurement or disposal activity, which does not comply with the applicable procedures under the Act, shall be deemed to be invalid.

36.    
In the evaluation and adjudication of a bid, no factor outside those explicitly stated in the bidding package shall be taken into account by the evaluators or the adjudicators in arriving at a recommendation or making an award, unless there are extenuating reasons to use additionally an industry standard or best practice.
 37.    
(1) The Board shall adjudicate bid
recommendations submitted to the Board by competent bodies and award those bids.
(2) The Board may return bid recommendations for reconsideration, reject recommendations, appoint an independent evaluation team to reevaluate bids and on its sole determination make an award to the most compliant bidder, detailing in such instances in its proceedings the precise grounds for the action it has taken."
Mention should also be made of section 41, which requires the
prior written approval of the Board to certain alterations in the
conditions of an awarded bid and of section 45, which provides -
"45. A procuring entity shall not invite bids for which funds are inadequate or not available or for which the Ministry has not issued a written confirmation that the required funds shall be made available in a timely manner and in the amount necessary."
6

6.     
Finally, the Act also contains provisions designed to assist in the resolution of disputes, including an important section, section 53, which requires the Board to act on complaints made to it. Part X contains provision for an independent complaints review committee, but that committee has not yet been set up.
 7.     
The Invitation to Tender.
The Invitation to Tender ("ITT") bears the issue date 2 October 2002. Section 2 explains the scope of the project as -"the provision and implementation of:
1.       A Border Control System and
2.       A Passport Issuing System."
and further states:
"In this regard, the Dol requires a lead supplier/Bidder to deliver and support the systems on a single contract basis. The supplier may decide to sub-contract some products and services from local or partner companies. Such supplier shall:
1
4.     
Provide detailed financial and pricing responses (in Section 2) to the ITT documents.
5.     
Supply   a        definitive       project implementation plan and time frames..."
The contract envisaged that the contractor would provide certain equipment and software, conveniently referred to as "the
7

product element"; and also training, setting up and support, "the services element."
Paragraph 3 is headed "General Conditions" and includes the
following:
"3.1 The bidding authority which will also be the lead contractor to this ITT must be a fully registered company with sound financial backing and experience....
3.5 Notwithstanding that all bidders responses are valid for 270 days from submission date. ....The timetable for evaluation and contract negotiation will be drawn after receipt of the tenders since the number of tenders received will be a major determining factor.
3.8 The tenderers shall furnish, as part of the tender, a bid security for an amount of P75,000.00...The bid security shall be denominated in Pula and shall be either in the form of a bank guarantee shown at appendix 4 or confirmed irrevocable letter of credit...
3.10   
The ITT has to be responded to in two (2) sections namely "Technical Solution" and "Financial Requirements and Commercial Terms" with a management summary."
3.11   
Bidders should be able to supply all hardware and software items tendered for within the stipulated time in the project plan of the agreed contract upon receipt of order, and must be in a position to install and fully support each system in each location as per their proposed project management proposal."
3.16 Awarding Process

The Public Procurement and Asset Disposal Board will award this tender. Therefore they reserve the right to award all or part or none of this tender at its sole discretion.
1.     
The award will not necessarily be made to the respondent offering the lowest price.
2.     
Suppliers should note that the awarding of this tender is subject to an agreed contract. All services and deliverables, including a detailed implementation plan will be specified in the contract.
3.     
Any costs associated with the preparation and compilation of the supplier/bidder's response to this tender or subsequent contract negotiations will be for the supplier's account.
3.17 Qualification list of the Bidders Response
The following criteria must be met in order for a response to be accepted for further evaluation:
1.     
The response must meet all criteria defined in Section 1 (reference 3.10, 3.11 etc. of this document.
2.     
The response must meet all criteria defined in Statement of User Requirement (Section 3 of the tender).
3.21.3   Support Costs
Suppliers are to indicate future support costs for their proposed solution together with any licensing costs. For more detail please refer to section 3.25.6
3.25.3   Statement of Capability
Bidders shall include a statement of capability which will detail the level of resources available within the organisation to be committed to this
9

project for the delivery of the solution requested, including all required products and services to the appropriate standards.
This statement of capability should include but not be limited to:
vii) Where responses are being submitted by a group of companies or a prime contractor and sub-contractors, the relevant details for each of the partners/collaborating companies or sub-contractors should also b e submitted.
viii) Number of trained personnel employed by the lead/Prime contractor and any sub-contractor.
3.25.6 Support
The supplier shall if requested provide both operational and technical on-site support until the end-user's support staff have acquired the necessary skills. The supplier shall also provide support for operational and technical problems as well as support for future enhancements.
The supplier shall provide hardware (passport
printers, reader and central server) software
and operational support for all items. This
shall include problem solving, upgrades and
enhancements for their systems. Suppliers
shall give details on how they intend to
provide this support, together with
information      on       any      emergency
arrangements."
In addition, the tender invitation gave an example in appendix 4 of the degree of detail required in submitting a tender, including details of implementation and training costs.
10

Consideration of tenders.

Eight tenders were submitted in response to the invitation. There was then a first stage process of evaluation,, designed to produce a short list of tenders for detailed study. In the event, AST and IBS were selected, along with three others. The five companies were invited to submit presentations and there were also site visits to customer sites of the tenderers. The evaluation was undertaken by a committee representing the parties described as stakeholders, including immigration and police officers. The chairman of the committee was Mr. B. A. Majola, Deputy Chief Immigration Officer in the Department. The site visits were made by a team of four officers, identified by the Department. Mr. Majola was chairman of the sub-committee and his colleagues on the site visits were Mr. Pandey, Ms. Mokgatle and Mr. Sesa. Mr. Pandey is an Information Technology Manager in the Department of Information Technology, and his role was to look after the project from the IT side. A number of issues concerning what took place during the proceedings of the committee and the site visits have been raised in the affidavits lodged in these proceedings. I do not, however, think that any of these matters have any real significance for the decision of this case. After the visits, the sub-committee met and decided what it should recommend, and
11

Mr. Pandey wrote a report setting out its conclusions. The
result was that AST was rated first in regard to capability to
implement the project and IBS was rated second. The decision
to favour AST was made by a majority: Mr. Pandey preferred the
IBS solution. The evaluation committee then met and prepared
a report dated 23 October 2003. The report narrates the
evaluation process. It shows that after the initial presentations,
IBS was rated first of the five companies and AST was rated
third. It then narrates that after the site visits, AST was rated
first and IBS second. The report states:

"We are also mindful of the fact that during the presentation IBS was rated number one and AST number three as shown above. During the site visits it was found that AST was more capable to implement the project than IBS."
The report also states that only the first two companies were
considered capable of implementing the project and that if they
turned down the offer, the project would require to be
retendered. The report continues:
"Further we would like to bring to your notice that the IBS is 100% citizen-owned company whereas AST Botswana is a subsidiary of AST South Africa and both companies are partnering with overseas companies to deliver the proposed solutions. The project cost of the respective companies are USD 6,163,812.53 (equivalent Pula 36,982,875.20) and P 75,8008,168.70 [sic].
In view of the above, the site visits revealed that among the companies visited, AST Botswana has an edge over the others in terms of capacity to implement the proposed solutions and is
12

recommended to implement the proposed solutions. IBS is as well recommended in case AST refuse or turn down the offer".
The report was sent to the Board under cover of a letter signed
by Mr. Majola dated 24 October 2003. It is worth noting at this
stage that the paragraphs last quoted above seem to be the only
reference to the tender prices in the reports submitted at the
stage of application for final approval. The package of papers
submitted to the Board did include a number of score sheets
recording the evaluation of 28 specified factors, one of which
was "Price", but there was nothing in the reports to indicate
whether, and if so how, the scores were taken into account in
arriving at the recommendation in favour of AST. On 3
November 2003, Mrs. Nkata Seleka, an information technology
manager with the Board, sent an e-mail to Mr. Pandey posing
the following three questions:
"What were the scores for the site visits (can we have the individual scores and summary of)?
What about the cost? Was this component evaluated and included in the scores and at what stage?
What's the Departments budget for this project?"
Mr. Pandey replied saying that he would like to discuss the questions with Mrs. Seleka. Mr. Pandey's affidavit does not say whether or not such a discussion took place, but, on 6

November 2003, Mr. Majola wrote to the Board with regard to
Mrs. Seleka's e-mail. His letter said:
"1. Scores for the site visits: We have prepared reports instead of scoring. The report which was attached to our submission was a summary report drawn from individual reports.
2.     
Cost: The cost was considered at the time of presentation as one of the criteria but was not included in the site visit reports. We know that the recommended supplier is above our budget but the members agreed to negotiate the cost and other factors with the preferred supplier at the time of contract negotiation.
3.     
Project Budget: The project budget is 52 Million Pula."
In the Record, there follows a document apparently prepared for
submission to the Board by Mrs. Seleka. It summarises, briefly
but in the main accurately, the contents of the documents
submitted by the Department, including the bid prices and the
contents of Mr. Majola's letter, and notes that the difference
between the tender prices is P38, 825,293.50. Under the
heading "Decision" it states -
"Instructing the Department to go back and score will not be of any use as they will just go back and justify their decision. However, they are prepared to do it."
Up to this point, the document is in typescript. There is
appended a manuscript note which states:
"Reject award to AST Botswana and award to IBS in the amount of P36, 952,875.20".
14

Two signatures and the date 6/11/03 are added. It does not appear to be established who the signatories were. On 6 November 2003, Mrs. Seleka on behalf of the Board wrote to the Department stating that the request to engage AST was rejected and requesting the Department to award to IBS-IT. On 12 November 2003, the Department wrote to IBS intimating that they had been selected.
Mr.Sesa's Report
As mentioned earlier, one of the members of the evaluation committee and the sub-committee which made the site visits was Mr. B.W. Sesa. Mr. Sesa was apparently concerned about a number of aspects of the evaluation process and on 11 November 2003 he submitted a report to his superior in the Department, Mr. Lebopo W. Thekiso. In the earlier proceedings in this case there was some controversy about the status of this report and the extent to which AST should be allowed to rely on it. However, an affidavit by Mr. Sesa dated 6 September 2005 has now been filed. It states that the report was written and submitted by him on the date which it bears. Mr. Majola has given an affidavit in which he expresses doubt as to whether the report could have been prepared and submitted as Mr. Sesa alleges because it is not in the form which he would have expected for an official report and has no reference number.
15

There is, however, no direct contradiction of Mr. Sesa and no affidavit by Mr. Thekiso has been submitted. It seems to me to be quite proper to consider what is said in Mr. Sesa's report. It was that report which gave rise to the questions which have been asked in this case. What is now important is not how the report was prepared or how it came to the knowledge of AST, but whether there is substance in the points raised in it.
In the report (which was originally produced as annex FG to an affidavit by Mr. Richard Miles, a Director of AST) Mr. Sesa criticised the reports of the sub-committee and the evaluation committee on a number of grounds. He regarded the statements as to the capacity of AST and IBS respectively to implement the project as contradictory and confusing. It is obvious that Mr. Sesa thought that the sub-committee report, which was written by Mr. Pandey, gave undue prominence to Mr. Pandey's preference as opposed to that of the majority of the subcommittee, and he went so far as to suggest that something sinister might be taking place. I should say at this point that, on the materials before us, I do not think that anything has emerged which would justify Mr. Sesa's suspicions. This is an issue which is not easy to judge on affidavit evidence only, without the opportunity to question witnesses about the precise terms of the report. It seems to me, however, that, on a fair reading, the document reflects the deliberations of the sub-
16

committee quite accurately and fairly. It is true that it explains that Mr. Pandey preferred the IDS bid, but Mr. Pandey had been perfectly open about his preference and had given reasons for it, and the report was agreed to by the sub-committee and was open for discussion when the evaluation committee met. I should add that Mr. Sesa's report also suggests that Mr. Majola had been misled into agreeing to the evaluation report, but there is nothing in the documents to support that suggestion and Mr. Majola and Mr. Pandey both deny, in their affidavits, that anything of the kind occurred.
So far, thereafter, there is nothing to justify the suggestions
made by Mr. Sesa. There remains, however, another important
part of the report FG:
"On the issue of pricing, it is surprising that the author of the recommendation report raised the issue and with biasness (sic). Well the price stand as they are in the report but there was an issue, which was raised during the site visits concerning some irregularities in the IBS pricing schedule. In our invitation to tender (ITT) for this project section two (2) (Financial requirements and commercial terms) Page 3 of 7 item 1.1 (pricing approach) sub item (i) we are asking for line by line costing for all products and services. The company costed only the products but left out the services, which are much more important because that entails project management, training etc.
This issue was discussed by the team and it was agreed that the issue of pricing can only be raised during the contract negotiations. Hence I am puzzled how it was raised at this early stage and I doubt if it was done in good faith. I think the company, which costed high but meeting all the
17

requirements is better than the one which omitted other requirements, whether deliberate or not.
In any case, I fail to understand whether the omission of this irregularity was deliberate or what. One wonders how a technical person like an IT Manager could have missed an irregularity like the one committed by IBS in their pricing. This irregularity would have, under normal circumstances, have disqualified the company, as that is tantamount to breaking the rule of the game. It might turn out that the P36 million the company quoted is not correct because the other component (services) was not costed."
19. Again, it seems to me that Mr. Sesa's suspicions of Mr. Pandey
go beyond anything which can be justified on the information
before us. For the present purpose, however, what is more
significant is that the point about pricing to which Mr. Sesa
drew attention has been proved to be correct. The relevant
section of the tender submitted by IBS was eventually made
available and is found in the Record as an appendix to a
Supplementary Affidavit by Mr. Miles dated 24 February 2005.
The document includes a fully priced schedule of items of
hardware and software, but the section for services, including
development cost, testing, implementation cost and training
cost is left blank. Mr. Miles' supplementary Affidavit refers also
to the Technical Proposal and quotes from it as follows:
"In this part, all the project services such as training, technical support, plans of installation and delivery, documentation requirements, and project management are preliminarily premeditated to be finalized with the Department of Immigration whenever the contract is awarded."
18

20. In the course of the hearing on this appeal, full hard copies of
both tenders were at last produced. From the IBS document, at
p.l 12 of 149, it appears that the paragraph quoted is the first of
a section headed "3.12 Project Services". The bid document
continues:
"3.12.1 Project Management
The section describes the way in which GET will manage the development and implementation of a system for Botswana Dol, the basis for which will be a Project Management Plan. The following sections show the typical aspects, tailored wherever possible to the requirements.
The Project Management Plan is a working document intended to be updated and maintained throughout the project implementation period and covers all project management aspects as well as containing a number of key project management deliverables."
21. A glance at the following pages confirms that what is given is a general description of what a project management plan might typically contain, without any attempt to relate the general description to the specific case of this project. That of course may be a perfectly proper way to go about planning and tendering for a contract of the size and complexity of this one, but the point is that the approach is clearly different from that adopted by AST and envisaged by the ITT.
22. The judgement of MARUMO J.
19

In his judgement, MARUMO J. dealt in detail with the
interlocutory proceedings and set out the history and the
relevant terms of the tender. He then proceeded to consider the
position of the Board in relation to the statutory provisions
summarised above. He pointed out that the evident purpose of
the Act was to ensure that public works and services are
procured with the utmost propriety and to eschew corruption
and patronage. He added (in para.28):
"Manifestly, Parliament in its wisdom intended to assemble an elaborate structure which, properly utilised, would ensure, among other things, the fair and unbiased award of public contracts, many of which involve not insignificant amounts of public funds."
Later, in para.30, he emphasised that the Board is given
extensive powers to enable it to act as guardian of the public
interest and in para. 31 he said:
"The key principles demanded by the Act are fairness, equity, accountability and transparency. An attitude on the part of either the [Board] or the procurement entities under its supervision which debases these basic and rudimentary principles, so readily apparent even upon a precursory, elementary consideration of the Act must meet with the disapprobation of the courts. The Board is constituted to be a fair and principled adjudicator. It must not only be fair and principled, it must be seen to be so."
In the next section of his judgement, MARUMO J. considered the position of the Board in relation to the common law and held that the Board was a statutory public authority performing
20

public functions and that its actions were subject to the
common law review principles. He further held that the Board
as an administrative decision maker was not entitled to
maintain secrecy about the circumstances in which its
decisions were made (see para. 35). From there, he proceeded to
point out that the invitation to tender had required a full costing
of the hardware and software and also the development and
implementation costs, whereas the tender by IBS, which was
accepted because it was within the budget, did not include
those costs. He said;

"By accepting the 3rd. respondents' non-compliant bid in that state the [Board] conferred an unfair advantage on it. It effectively tilted the playing field in its favour by creating a situation where it could be and actually was argued that its bid was within the budget whilst the other was not. The reality of the matter is that both bids were beyond the Department's budget and the matter had to be approached from that premise."
The judge went on to say that the terms of the successful bid showed that the bidders were aware that important items were not costed in the tender and to suggest that the attitudes of the Board towards the two tenders were inconsistent. He also dealt with other aspects of the successful tender which he found unsatisfactory. In paras. 49 to 58 of his judgement MARUMO J. reviewed the way in which the Board had responded to requests for information and to the affidavits lodged on behalf of AST and held that the Board had failed in its duty to provide full and
21

frank information a bout its dealings with the tenders. He held that the decision of the Board to award the tender to IBS was flawed and should be set aside. He subsequently held that the tender should be awarded to AST, but that is a matter to which I will return.
Heads of Argument for the Board
The main lines of argument for the Board in the appeal were as follows -
1.     
The judge had misconstrued the Act and misunderstood the nature of the duties imposed on the Board. The Board's responsibility was a supervisory one to oversee the procurement and disposal of assets. Although the Act removes from the procuring entity the final decision as to whom a tender is to be awarded, it leaves intact the entity's role in the primary consideration of the individual bids.
2.     
Any failure to carry out a proper evaluation of the IBS bid and in particular to assess its conformity to the invitation to tender was a failure of the Department. The Board fully considered all material put before it and there was nothing placed before it which brought any defect in the bid of IBS to its attention.
22

3.       The judge had misunderstood the position in regard to the

bid document of IBS. That document was not part of the record of proceedings before the Board and was not considered by it. The Board was bound neither to consider it nor to produce it to AST and was not guilty of any impropriety in the conduct of the present proceedings and in particular in relation to any delay in producing the IBS document.
4.     
The Board rejected the ATS bid because it exceeded the budget and this was a perfectly proper exercise of its discretion.
5.     
The judge paid attention to matters which he should not have considered, including hearsay and other irrelevant or inadmissible material in the affidavits.
6.     
The Board had properly considered the material before it and its decision was not vitiated by any error of law or of approach.
The exercise of the Board's duties.
This case raises fundamental questions about the nature and extent of the statutory duties of the Board. These are addressed in the first two of the propositions in which the contentions on behalf of the Board are summarised above. In his submissions, Mr. Peter, for the Board, stressed that the Board has a
23

supervisory function. It is a body with a full-time executive chairman and three full time and three part-time members. It is not tasked with, and indeed not capable of, taking over and performing the functions of procurement entities. Those entities remained responsible for the performance of their functions. The Board would perform its statutory duty of supervision if it examined reports made to it, taking them at face value at first. If on such an examination it appeared that there was something deficient, further examination might be required. But if the reports were comprehensive and thorough, it was not for the Board to look for "ghosts and shadows." where there was no indication that anything of the kind might exist. There was a statutory duty on the Board under section 27 of the Act to "ensure" compliance, but that could only mean taking reasonable steps to that end.
It is clear, in my opinion, that the Board is a supervisory body, not an executive one. It would be a serious mistake to impose obligations on the Board which would amount to requiring it to duplicate the work of the procurement entity and check every step of the evaluation process which the entity had followed. That would be to create an extra layer of bureaucracy in the procurement procedure and would be liable to complicate and delay a process which is often quite slow and complex already. It does, however, appear to me that the formulation of the
24

Board s duties suggested by Mr. Peter fails to give sufficient
weight to the importance of the functions which the Board is
asked to perform and to the emphatic language of the Act. In his
judgement, MARUMO J. said , at para.30:

"Quite clearly the Act constituted the 1st Respondent and clothed it with extensive powers to enable it to play the role of guardian to the public interest in the area of public procurement and asset disposal. It is a momentous fiduciary duty whose gravity should not be downgraded for a moment."
That passage, in my view, places a proper emphasis on the importance of the Board's function. Against that background, it seems to me that when sections 26 and 27 say that the Board is to ensure compliance, that requirement cannot be satisfied by a mere examination of reports taken at face value. It requires at least a sceptical and penetrating scrutiny of the material placed before it and a readiness to ask questions to make sure that the material which lies behind the reports and the basis of any recommendations has been properly understood. In a case like this, where a balance has to be struck between undue interference on the one hand and adequate scrutiny on the othe