Shipping company Smit Amandla, which stands to lose out on a R1-billion state fisheries tender, has accused the department of agriculture, forestry and fisheries of running an “unfair, unreasonable and irrational” procurement process and its officials of being technically poorly qualified.
Smit Amandla has held the contract to manage, crew and operate the state’s environmental and fisheries vessels for 11 years.
But last month, Agriculture, Forestry and Fisheries Minister Tina Joemat-Pettersson announced a new R1-billion five-year deal with a consortium led by listed company Sekunjalo, a majority stakeholder in Premier Fishing.
The announcement sparked loud criticism, primarily because Sekunjalo itself holds substantial fishing interests that are policed and monitored by the very vessels the company has been contracted to manage.
The contract could give the company an edge in knowing the quantity of fish the state would allow it to catch over the following season and inside knowledge of the activities of fisheries patrol vessels.
Sekunjalo has rejected the criticism, arguing that the control officers will not “share intelligence” with the ships’ skippers and crew members.
High Court application
On Tuesday this week, Smit Amandla applied to the Western Cape High Court to have the bid reviewed and set aside, attacking both the department and Sekunjalo.
In a founding affidavit, company director Caven Leale claimed that there were many flaws in the bid process, including alleged collusion between Sekunjalo and Premier Fishing.
In particular, he said, the department had provided outdated documentation that omitted a new clause regulating anti-competitive bidding.
This was relevant, he said, because the two companies had submitted four bids between them.
Leale said that, before the contract was awarded, Smit Amandla had written to the department to warn that there “may have been consultation, communication and arrangement” because the four bidders were “connected parties”.
“It is simply inconceivable that, given their relationship, their bids were put in without the sharing of information relating to their contents,” Leale said.
Sekunjalo spokesperson Kaveer Bharath responded that the four bids were drawn up by separate teams, although group chief executive officer Khalid Abdulla headed each of the Sekunjalo bids and the two Premier bids were managed by Premier’s general manager, Samier Saban.
But Bharath conceded that Saban reported to Abdulla.
Leale also raised a conflict-of-interest argument, saying Sekunjalo should have been disqualified for that reason.
“An entity with commercial interests in the fishing industry has a vested interest in knowledge of the determination of the TAC [total allowable catch]. If such an entity were to manage the research vessels of [the department], it would have or could gain advance and extensive knowledge of the TAC to be determined by the minister.”
This and knowledge of the patrol vessels’ routes would give the company a “considerable advantage” over competitors.
Leale said Smit Amandla had no commercial fishing interests.
However, Bharath claimed there would be no conflict of interest as “there is a clear separation of maintenance operation duties and that of operational intelligence, which we have no access to”.
“No crew member or skipper has any advance knowledge of any planned patrol route,” he said.
“They are only informed by a department-appointed inspector with strict controls when he arrives on the vessel.”
Smit Amandla also said that the contract should be set aside because “the decision not to award the tender to [Smit Amandla] and to award it to the Sekunjalo Consortium is irrational”.
Primarily, Leale attacked the department’s bid evaluation committee, which he said was too inexperienced and poorly qualified to judge the technical aspects of the bids, for which each company needed to score 80% to be considered.
He said that Smit Amandla’s Ian Calvert had presented the company’s bid to the bid committee, and that, “judged by the types of questions which were being raised, Calvert formed the firm impression that the members of the evaluation team did not have sufficient expertise to assess the bids in terms of their functionality”.
Leale also said that, compared with Smit Amandla, “Sekunjalo consortium does not have the required expertise and experience”.
Bharath also dismissed this claim, saying the company “has gained vast technical and engineering experience conducting repair and maintenance on both Premier Fishing’s fleet and trawling vessels from around the world”.
That Sekunjalo would be relying on Premier’s fleet was further evidence of “collusive tendering”, Leale argued in his affidavit.
A partner in the consortium is naval architectural firm KND, which Bharath said “focuses on coastal patrol vessels”.
The matter has been provisionally set down for hearing on March 22 next year. Smit Amandla spokesperson Clare Gomes said that, until the matter was heard, the department “has undertaken not to formally contract with Sekunjalo Marine Services Consortium”.
Department spokesperson Hein Wyngaard said: “The fisheries branch will rebut the allegations through the relevant legal channels. In the meantime, we are confident that our procurement processes remain solid.”
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