Former city manager, Mike Sutcliffe, said he would welcome an investigation into the awarding of a controversial R864 million tender for the Western Aqueduct.
The tender was stopped by a KwaZulu-Natal High Court judge, who said the actions of eThekwini officials in awarding the contract were “breathtakingly brazen” and amounted to “gross negligence, sheer incompetence or lack of capacity”.
Sutcliffe was responding to calls from the DA, who on Tuesday quoted Pietermaritzburg High Court Judge Dhaya Pillay’s order – that action must be taken against officials who awarded the contract to a joint venture comprising Esorfranki and Cycad Pipelines.
“Of course I would (welcome a probe into the tender). I was the appeal authority on that matter. We had three senior counsels’ opinion on that and we had national treasury themselves supporting us on what we did. I don't listen to Chihuahuas.... I think the DA is taking a cheap public shot,” Sutcliffe said.
The eThekwini Municipality abandoned its appeal against Pillay’s judgment as the appeal process would have been costly and the council decided to cut its losses, said Sutcliffe. Losing bidders, Sanyati Civil Engineering and Construction and Group Five, had taken the matter to court.
In her October judgment, Pillay ordered that work along the Western Aqueduct be stopped after finding that the actions of city officials in awarding the contract were “not only irrational, but also unconstitutional and unlawful”.
Officials had been biased in the tender process and their actions had been procedurally unfair.
“They considered irrelevant factors and disregarded relevant factors... This case typifies how not to conduct procurement,” she said.
eThekwini was ordered to pay costs. She also said the eThekwini Municipality should recover the costs “from officials who acted unlawfully or committed misconduct so that taxpayers are not penalised”.
DA caucus leader, Tex Collins, in a letter to new city manager, Sibusiso Sithole, said that as the municipality was no longer appealing against the court judgment, the entire procurement department and all bid adjudication committees must be placed under investigation.
“The deputy city manager procurement and infrastructure and all officials involved must also be the subject of an investigation and if necessary placed under suspension pending the outcome of such an investigation.
“Criminal charges must also be laid against those found guilty of acting ‘unlawfully’ because the nature of this very serious case points directly to collusion and unlawful acts. The former city manager cannot be excluded from this investigation because it was indeed Dr Sutcliffe who signed the contract with Esorfranki knowing full well that a high court action was pending,” Collins said.
Sutcliffe said that the process of awarding the Western Aqueduct contract was the most thorough the city had ever undertaken and that all the minutes of the meetings were available to the public.
“Even when it came to the appeal authority I had suggested that we should re-advertise the tender. However we decided to put the re-tender (idea) to senior counsel for further opinion on the matter. Senior counsel came back and said ‘no’ we should not re-tender and we should go ahead with that,” he said.
“What do you do when you have three senior counsel opinions and national treasury telling you that what we are doing is correct? What do you do? Do you suddenly say ‘oh well to hell with them’? “It is so easy to be clever in hindsight.”
Sutcliffe also slammed the judge’s comments alluding to possible corruption saying that this was never mentioned in any of the court papers filed by the losing bidders.
“I think it is a real tragedy that the judge actually did not focus on the arguments as much as wanting to make what I see as rather crude public statements. The judge decided and in the end that is what we accepted but I think that some of the comments made there were completely uncalled for,” he said.
Sutcliffe said he raised the judgment with eThekwini’s head of legal, Nkhoana Moerane, and told her to make available the minutes of meetings and the entire award process to the public.
“This is probably one of the most surest processes that we went through. It involved some of Durban’s best legal minds advising us on that process. I stand by that process,” Sutcliffe said.
The Daily News e-mailed eThekwini spokesman, Thabo Mofokeng, and the city’s procurement and infrastructure head, Derek Naidoo, a list of questions relating to the tender. At the time of publishing on Wednesday, they had not responded. - Daily News