The Court of Appeal has dismissed a bid by construction company Black Cad Investments to revive a long-running government infrastructure tender. The Court ruled that procurement authorities acted lawfully when they cancelled the project after years of disputes, investigations and repeated evaluations.
In a judgment delivered on 31 July, the appeal court upheld an earlier High Court ruling that rejected Black Cad’s challenge to the cancellation of a tender for water and sanitation infrastructure in Morwa West, Kgatleng.
The project, first advertised in 2017, was intended to deliver a water pipeline, reservoir, outfall sewer line and related services. But what began as a routine public procurement exercise spiralled into a four-year dispute involving complaints from bidders, police investigations, litigation and multiple reviews of the evaluation process.
Writing for a unanimous bench, Justice of Appeal Isaac Lesetedi described the procurement process as a ‘long drawn out four-year nightmare beset with controversy and challenges’, noting that the project had effectively become ‘a mirage’ that might never be realised.
The case centred on a decision by the Public Procurement and Asset Disposal Board (PPADB) in September 2021 to cancel the tender. The board cited two reasons: the age of the procurement process and a finding that none of the bidders ultimately complied with the tender requirements.
Black Cad argued that once the originally preferred bidder, Dambeko Construction, was disqualified for submitting false information, it should have been awarded the contract. The company also contended that the PPADB had no authority to cancel a tender simply because it had become old.
The Court of Appeal declined to determine whether age alone could justify cancellation, finding that the case could be resolved on other grounds. Instead, it focused on the board’s finding that Black Cad itself had failed to meet a mandatory tender requirement by not submitting the curriculum vitae of its proposed project manager.
The judges held that procurement authorities were entitled to revisit earlier evaluations and conduct fresh scrutiny of bids. Even if an earlier assessment had found Black Cad compliant, the PPADB retained broad statutory powers to review the procurement process and reach its own conclusions.
The court also rejected allegations that the board had acted irrationally or in bad faith. It found that procurement officials repeatedly called for records, reviewed documentation and examined complaints before making decisions.
‘From the record, the Board acted fairly, rationally and in good faith,’ Lesetedi wrote, adding that its conduct was ‘beyond reproach’.
The judgment highlights a recurring problem in Botswana’s procurement system: infrastructure projects delayed for years by disputes and litigation. By the time the PPADB revisited the Morwa West tender in 2021, four years had passed since bids were submitted, raising concerns that contractors could no longer reasonably be expected to deliver the works at 2017 prices.
The board concluded that inflation, changing project conditions and the passage of time had fundamentally altered the tender environment.
The Court of Appeal also found a procedural weakness in Black Cad’s case. While the company sought to overturn the PPADB decision, it did not directly seek to set aside the underlying decision of the Ministerial Tender Committee, which had found all bidders non-compliant.
As a result, even if Black Cad had succeeded against the board, the ministerial committee’s decision would have remained legally effective.
The appeal was dismissed with costs, bringing to an end nearly nine years of disputes over a project that has yet to break ground. Attorney Tshiamo Rantao,Maswabi, and Kgakgwe represented the PPADB while Atang Kgaodi represented the Attorney General.