04 Jul 2013 09:00
WINDHOEK, 04 JUL (NAMPA) - The Namibian Government was dealt a heavy blow on Thursday when it lost a legal court challenge on the awarding of the Neckartal Dam construction tender to an unsuccessful tenderer who had vied for the construction of the multi-billion dollar project.
The unsuccessful bidder - CSC Joint Venture, which is a joint venture between Italian, South African and Kuwaiti dam construction companies - this morning successfully managed to have the Windhoek High Court order the Government to completely stop the implementation of the tender awarded in connection with the construction of the Neckartal Dam.
A bench comprising High Court Judge-President Petrus Damaseb and judges Dave Smuts and Shafimana Ueitele ruled in favour of the legal challenge application, and ordered Government to stop the implementation of the tender it awarded to Italian dam construction firm Salini Costruttori S.p.A .
According to the High Court judgement, the whole tender process for the construction of the Neckartal Dam will now start from scratch, with the Tender Board of Namibia having been ordered to start the process afresh.
In addition, the Government was also ordered to foot the legal bill of CSC Joint Venture (applicant).
?The application brought by CSC Joint Venture to review the tender award for the construction of the Neckartal Dam is successful. The decision of the Tender Board of Namibia to allocate the tender for the Neckartal Dam construction project to the Italian dam construction firm Salini Costruttori S.p.A is hereby set aside with costs,? said Judge Smuts as he read the judgement out in court.
Judge Smuts explained: ?We accordingly make the following order that the decision by the Tender Board of Namibia to award the tender for the construction of the Neckartal Dam project and Phase One of the bulk water supply project under Tender Number F1/18/2-1/2012 to the fourth respondent (Salini) is set aside.?
He said the matter is now referred back to the Tender Board of Namibia for the purpose of determining the award of the tender in a manner not inconsistent with this judgement.
?The respondents - being the Namibian Government, the Tender Board of Namibia, the Ministry of Agriculture, Water and Forestry, the Ministry of Finance and Salini - are directed to pay the applicant's legal costs, jointly and severally, the one paying the other to be absolved. These costs are to include those of the instructed legal counsels, and one instructing counsel,? said Smuts.
Meanwhile, another unsuccessful tenderer - a joint venture of French and Egyptian companies called Vinci-Orascom ? had withdrawn its legal challenge on the awarding of the Neckartal Dam construction tender against the Namibian Government on 22 May this year before the hearing could start in court.
Windhoek-based lawyer Advocate Raymond Heathcote (SC), who represented Vinci-Orascom in the legal challenge, withdrew the application against the Namibian authorities a few minutes before the hearing was about to start.
The Vinci-Orascom joint venture was one of the unsuccessful bidders for the Neckartal Dam construction tender, along with CSC Joint Venture.
In this application, South African legal senior counsel (SC) Graig Watt-Pringle and Tania Prinsloo - who represented CSC Joint Venture successfully ? had asked the court to order the Namibian Government to stop the implementation of the tender for the construction of the Neckartal Dam.
South African legal Senior Counsel (SC) Vincent Maleka represented the Namibian authorities in this matter.
Jean Marais and Charmaine van der Westhuizen represented Italian dam construction firm Salini Costruttori S.p.A.
In the matter, the Tender Board of Namibia announced on 15 March 2013 that it had decided to award the contract for the dam?s construction to Salini Costruttori S.p.A, which had submitted a bid of N.dollars 2,873 billion.
Vinci-Orascom's tender bid was N.dollars 2,876 billion, while the bid of CSC Joint Venture was N.dollars 2,724 billion.
Although a firm of consulting engineers which evaluated the bids of the three shortlisted tenderers recommended that the contract be awarded to Vinci-Orascom, the Tender Board decided to award it to Salini S.p.A instead.
According to the Tender Board, it decided that it could not entrust Vinci-Orascom to build a dam of Neckartal?s magnitude because, in its opinion, the joint venture would have inexperienced key personnel working on the project.
The Tender Board also stated that Salini S.p.A has key experienced people in dam construction, as well as the best technical know-how of all the shortlisted tenderers.
The Neckartal Dam is to be constructed in the Fish River, about 40 kilometres west of Keetmanshoop near the settlement of Berseba in the Karas Region.
The dam will have a wall of 518 metres long and 69.5 metres high, and will create a water reservoir covering an area of about 39 square kilometres.
The dam will provide water for an irrigation scheme, which is to be established on about 5 000 hectares of land downstream from the dam.
The Neckartal Dam, upon completion, will be Namibia's largest dam after the Hardap Dam in the Hardap Region.
Maleka represented the Namibian Government, acting on the instructions of the Office of the Government Attorneys.
He was assisted by Windhoek-based lawyers Dr Sackey Akweenda and Advocate Herman Oosthuizen.
Heathcote was assisted by Ramon Maasdorp.