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Molefe v Tati Land Board (FLTLB005/17) [2017] BWLT 21 (25 August 2017)

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REPUBLIC OF BOTSWANA

 

IN THE LAND TRIBUNAL

HELD IN FRANCISTOWN

                                                            CASE NO. FLT LB 005/17

IN THE MATTER BETWEEN  

JOHANNES M. MOLEFE                                              APPELLANT

AND

TATI LAND BOARD                                                  RESPONDENT

 

CORAM:                   B. Mokakangwe

                                                J. Gabanamotse

                                                G. Tobedza

 

APPEARANCES:       J. M. Molefe (Appellant in person)

                                               G. B. Habana (Respondent’s chairman)

                                               S. Pitinyane (Respondent’s Senior Land Adjudication Officer)

                                               F. Mmolawa (Respondent’s Board Secretary)

JUDGMENT

B. MOKAKANGWE

INTRODUCTION

1. The Appellant herein has brought an appeal against the Tati Land Board for their rejection of his tender for a lease of a commercial farm at the Matsiloje/Matopi Commercial Farms in the North East District (Tati Tribal Area). According to his grounds of appeal he felt that his proposal and presentation at the interview was exceptional and must have scored him marks enough to have him granted the farm.

BACKGROUND

2. The Tati Land Board advertised publicly the tender for the lease of Matsiloje/Matopi commercial farms in April to May 2016 and Appellant had submitted his application in respect of farm Number 8 under large scale farming. An evaluation Task Team was appointed from the Tati Land Board in conjunction with the Ministry of Agriculture. The Main function of the team was amongst others to develop evaluation criteria and evaluate applications. It is worth noting at this juncture that Appellant was a member of this evaluation team, which he later recused himself from.

APPELLANT’S CASE

3. Mr Molefe in his submissions contended that his proposal qualified in all respects and therefore should have been sufficient to see him granted the farm applied for. He says he was unfairly marked down for the Environmental Impact Assessment plans as this was not included in the tender hence he did not specify anything thereon. He also pointed out that he was not given a mark for Capital Investment, except by one evaluator and if marks were properly put up in his evaluation he would have passed. He says that he having indicated that his investment would be in excess of P2 500 000.00 He should have obtained twenty (20) more marks.

RESPONDENT’S CASE

4. Respondent’s case is that Mr Molefe was one of the tenderers for the Lease of Matsiloje/Matopi commercial farms. They further submitted that the evaluation criterion was categorized in three (3) stages which were preliminary Examination for compliance, Technical Evaluation and Oral Interviews by the Board. The Board Chairman Mr Habana informed court that in order for one to proceed to stage three (3) they should have passed compliance stage and scored 65% or above in the Technical Evaluation Stage which is stage two (2).

5. He says that Mr Molefe had passed stage 1 and scored 41% on the Technical Evaluation. Having realized that too many applicants had failed to qualify for Stage 3, Appellant inclusive, the Respondent decided that for large Scale tenders, the best 20 Applicants be allowed to proceed to stage 3. This new arrangement allowed the Appellant to qualify. He was therefore invited for oral interview, and obtained a score of 19%. The pass mark having been set at 65% he only scored 60% and therefore was rendered ineligible to be granted the large scale category farm he tendered for.

6. On the membership of Mr Molefe on the Technical Evaluation Team the Respondent assert that Mr Molefe is coming before court with soiled hands because he was part of the team that formulated the evaluation criteria and is only questioning the marking today because it is convenient for him to do so. That before he recused himself he had marked people already and did not say anything about the propriety or otherwise of the evaluation criteria.

ISSUE FOR DETERMINATION

7. Whether Appellant should have been allocated the farm tendered for under the circumstances.   

THE LAW

8. As a matter of general principle the court will not interfere with tender process that is procedural and not tainted with irregularity. Thus, where competitive tenders are sought, responded to and considered fairly, a tenderer will not be successful in his quest to be awarded the tender. In this regard any person awarded should be so awarded on the basis of objective criteria which ensures full compliance with the principles of transparency, non- discrimination, and equal treatment. The criteria should also guarantee conditions that foster effective competition.

9. To ensure transparency the tenderers must be reasonably informed of the criteria and arrangements to be applied to identify the winning bidder beforehand. There must be no substantial change to the specifications or the terms and conditions that have been set at the time of tendering. Refer to case ATI EAC v ACTV Venezia [2005] ECR 1-251.

10. Having set out the principles I turn now to the case at hand. It is not in dispute that tender offers were invited by public advert for the lease of Matsiloje/Matopi commercial farms at Matsiloje as stated. It is not in dispute either that Appellant duly responded to the tender having applied under the large scale category.

11. The evaluation criteria was set out on page 7 of the Tati Land Board Tender documents. Inter-alia, for one to qualify beyond the first hurdle which was the compliance stage there had to be submitted a Project Proposal which contained proposal for feasibility and   viability , Marketing Plan, Management Plan, Capital Investment and Employment creation for citizens.

12. The second hurdle was the Technical Evaluation which involved allocation of scores based on a criteria that utilised a merit point system-as reproduced from the Tender Document set out below:

Item                                                   Distribution                  Weighting

Project Proposal

Maximum 30 Pages

Farming Experience                                                       5

Farming in similar environment                                     5

Feasibility, Marketing, viability                                     

Management Plan                                                          25

Capital Investment (Equipment ready for farming)        20               55

 

 

 

Financial Capacity to undertake project

Financial resources to be committed to the project

(Statements, Bank statements, reference letters from financing institution etc)          10

 

Employment Creation for Citizens                                                10

                  

 

 

Total                                                                                                 75

 

 13. At this stage it is duly noted by court that the process complied with the principles set out in this judgment. What the Appellant however decries in his submission is that under Capital Investment, except by one (1) evaluator, he was not given a mark and this led to him being marked down when he should have obtained the maximum twenty (20) marks because he indicated that he would invest P 2, 5 million. For this he relied on a letter from Citizen Entrepreneurial Development Agency (CEDA) referenced “Request for funding- Mr Johannes M Molefe of ID Number 996 016 300; Receipt Number 0042986”. The letter basically indicated that it would consider a loan application from Mr Molefe up to a maximum of P 30 million subject to him meeting all requirements. The letter emphasized that it did not in any way commit CEDA to grant the loan and would in no way be considered as such. 

14. He also avers that the goalpost were shifted in that Environmental Impact was never stated as part of the evaluation criteria. This resulted in him not including same in his proposal and this led him obtain low marks.

15. On the issue of the Capital Investment, it is clear that the Appellant solely relied on the CEDA letter already referred to. A quick perusal of the letter shows that this is a non-committal letter indicating that it will consider an application  for a loan from Appellant to the amount of P30 million. Surely more than just a committal letter by a funder is needed. Proof of source of Finance, Financial Statements, Bank statements and reference letters among others, in the courts view, is what was required. In fact, under financial capacity, the tender specify the documents mentioned as proof. Having found that indeed what was submitted was not sufficient as per requirement, court is satisfied that no unfairness was metted against the Appellant under the ground of appeal.

16. On the issue of inclusion of Environmental Impact under Management Plan. The principle as stated is that the tenderers must be reasonably informed of the criteria and arrangements to be applied. There must be no substantial changes to the specifications or terms and conditions that have been set during tendering. The question that must follow therefore is, was the change substantial, and if it was, was it made known to the tenders?

17. In the court’s view, for it to be substantial the change should have the potential of resulting in those who could have otherwise obtained some higher marks scoring lower. It is common cause that the Environmental Impact criterion was never mentioned in the tender and no valid reason for its inclusion at evaluation stage was given. Except to state that Mr Molefe is alleged to have been part of the crafters of the Technical Evaluation which in the court’s view has no bearing on the valuation the truth of the matter is that the criterion was never there from the onset.

18. In view of the fact that the criterion carried five (5) marks, court makes a finding that there was a substantial shifting of the goal posts. This was un-procedural and has clearly prejudiced the Appellant.

19. Be that as it may in analyzing this case, court came across some acts by the Respondent which are significant and require court’s attention.  At the outset, the tender document specified the evaluation criteria as comprising three stages; preliminary examination for compliance, technical evaluation and oral interview. For one to proceed from one stage to the next stage he/she had to meet the set requirements of the preceding stage where he would finally be awarded the tender. In this way the tender would be awarded to the bidder with the highest score on each plot applied for. In the court’s view the tender document constituted a contract with the tenderers that by passing all the three stages and obtaining the highest score an allocation is guaranteed.

20. However, the Respondent during the evaluation, contrary to the criteria set out, in view of the fact that very few qualified, set aside the measure and opted for the top 20 scorers in the technical score. This according to the principle of transparency and maintenance of public confidence would have been wrong. But there is a legal position in Administrative law that renders this lawful.

21. Niechers in Administrative law at page 169 states that:

A valid beneficial disposition may be revoked or repealed by its author only if there is express or necessary implied statutory authorization for revocation or if the revocation would be to the greater advantage of the beneficiary.”  

22. According to the above, and in applying same to the current matter, by changing the set criteria to include more tenders due to low numbers, the Respondent did not err in law because this left the tenderers at a greater advantage.

23. The problem is when the new criteria utilized during evaluation is to the disadvantage of the beneficiary. By not using the highest bidder and now applying a different criterion (65% pass mark) the Respondent erred.  It is questionable if this was after all to the advantage and best interest of the tenderers. The court finds this un-procedural because from the onset the winner of any farm would have been the bidder with the highest score of each plot. 

24. From the above analysis, of both the documentary evidence and oral submissions by the two parties, this Tribunal concludes that the Respondent acted irregularly by using criteria not initially set by so doing acting beyond the set parameters. However, because the Appellant was not alone in the tender and this may affect the interest of the other tenderers and considering the balance of convenience in this matter, the Tribunal would endeavor give an order that does not disadvantage existing interests. The appropriate way to do this will be to avoid a substitutive order as this is granted only in exceptional circumstances.

DETERMINATION

25. For all the a foregoing reasons;

(a)      The appeal PARTIALLY SUCCEEDS.

(b)       The Respondent is directed to re-evaluate all the applicants who attended the oral interview stage but were not awarded farms for possible award of remaining farms taking into consideration both the technical score and oral interview scores, in line with the initial set basis of award i.e;

(i)    The tender to be awarded to the bidder with the highest score on each plot.

(ii)    The plots to be allocated on equity basis. Bidders who have been allocated an arable plot in the past and such plot is still undeveloped will be disqualified. Furthermore, no applicant will be awarded more than one plot from this tender.

(c) No order as to cost is made.

The parties are informed of their right to appeal to the High Court within eight (8) weeks of delivery of this judgment if any feels aggrieved.

Delivered in Francistown this 25th day of August 2017.

 

…………………………………

B. MOKAKANGWE

President of the Land Tribunal


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