- As indicated above in the letter dated 8 April 2016, whose contents we have reproduced above, the SPB condoned the non-compliance through SPB/C24.
- Despite the request, the Committee has not been availed of the original letter written by Mr. M. Juma on 14 March 2016. However, it is clear to the Committee that it contained material misrepresentations.
- The first one was the reference to the agreements as PPPs when no such nomenclature was used in the agreement nor had it been used anywhere else.
- Second was the misrepresentation in respect of the fees that ZINARA was paying. The correct fees were as follows;
- Vehicle License 18.5%
- Tolling 16%
- Transit 16%
- The third misrepresentation by omission was the failure to outline the existence of three separate stand-alone contractual situations. Vehicle licencing is totally different from tollgate charges in as much as both are totally different from transit and fuel levies.
- Where condonation is sought in any statute, the decision maker must be empowered with full and correct facts to enable the same to apply his/her mind fully and objectively. Where a decision is then made on the basis of incorrect facts, whether such misrepresentation is innocent or otherwise, the resultant decision is null and void. It is not a proper decision.
- The Procurement Act gave the SPB powers of condonation under certain circumstances defined in Part VI of the Procurement Act [Chapter 22:14].
- When the law has not been complied with, the SPB would then appoint an investigator in terms of Section 46 (2) of the Procurement Act. The investigator had extensive powers that included powers to obtain any books of records, powers of entry and search.
- After completing investigations, the investigator was obliged to send a copy of the report to the SPB and a summary of his/her findings to the procuring entity and the relevant supplier whose conduct was the subject of the investigation.
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