- Section 47 (2) spelt out how the Board would deal with the investigator’s report. It read as follows:
“If, after considering an investigator’s report sent to it in terms of subsection of subsection (6), the State Procurement Board is satisfied that there has been a contravention of this Act or any other law in relation to any procurement proceedings or procurement contract, the State Procurement Board may take such action as in its opinion is necessary to rectify the contravention, including –
- annulment of the procurement proceedings;
- cancellation of the procurement contract;
- condonation of the contravention;
- ratification of anything done in relation to the proceedings;
- a declaration in terms of section forty-one; and, notwithstanding any other law, the proceedings or contract concerned shall be annulled, cancelled or have the effect, as the case may be, accordingly.
- From the above, it is clear that the power of condonation was only to be given by the SPB after an independent inquiry by an investigator. In this case there was no investigator appointed, there was no report of the investigator and for those reasons the SPB could not condone or regularise.
- The Committee, therefore, came to the conclusion that the purported regularisation through SPB/C/24 was a nullity.
- The Joint Venture Act [Chapter 22:22] was gazetted on the 24th February 2016. In section 12, this Act provides for unsolicited bids or expressions of interest. The Committee is aware that the original agreement in this matter could be described as unsolicited bids.
- However, no relief can be obtained by Univern from the Joint Venture Act [Chapter 22:22]. Section 16 of the same makes it clear that the Act shall not apply where the contracting authority has, before the commencement of this Act, either identified a counterpart or concluded any Joint Venture Agreement.
- There are other parts of the agreement that cannot stand the scrutiny of the law. The first, is the provision in the first Addendum that extends the scope of the agreement to include “…any future software solutions as required by ZINARA using Univern technology and software developed by or on behalf of Univern”.
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