Dora erred when she ordered cancellation of radar tender – witness

Dora erred when she ordered cancellation of radar tender – witness
Written by Mwala Kalaluka
Saturday, March 07, 2009 10:27:16 AM

A WITNESS yesterday testified before the tribunal that Dora Siliya erred when she directly wrote to Zambia National Tender Board, now Zambia Public Procurement Authority (ZPPA), director general David Kapitolo directing that the contract for the supply and installation of radar equipment at Lusaka and Livingstone airports be cancelled.

And Supreme Court judge Peter Chitengi yesterday assured communications and transport permanent secretary Mukuka Zimba that nothing would happen to her if she testified in the Siliya tribunal.

The tribunal has also noted that while donations by parliamentarians to their constituencies are encouraged, refunds should not be claimed on such gestures.

This is in a matter where former communications and transport minister William Harrington and ten civil society organisations have asked Chief Justice Ernest Sakala to set up a tribunal to investigate alleged corruption and abuse of office involving communications and transport minister Siliya.

Harrington and the ten civil society organisations urged justice Sakala to probe Siliya for allegedly breaching the Parliamentary and Ministerial Code of Conduct in her engagement of RP Capital Partners of Cayman Islands to value Zamtel's assets before partial privatisation and her cancellation of a tender that was awarded for the installation of radars at the Lusaka and Livingstone international airports. Siliya is also being probed over her alleged claim of K12.5 million from Petauke District Council as refund for two hand pumps for two boreholes sunk in one of the wards called Nyika, when in fact, the hand pumps were procured at K5 million.

Testifying before the tribunal, Ministry of Communications and Transport chief purchasing and supply officer Isaac Mukupa, 49 said that Siliya had no powers to seek the cancellation of the tender for the supply, delivery, installation and commissioning of radars at two international airports, because she was not part of the procurement entity.

During cross examination by one of the complainants' lawyers Wynter Kabimba, Mukupa said if Siliya had substantial justifications for the cancellation of the contract, she should have written to the permanent secretary, Dr Eustern Mambwe, at the time, instead of writing directly to Kapitolo.

"That is the right channel of communication in procurement," Mukupa said.

Mukupa is the author of the internal memo that was dated December 12, 2008, addressed to Siliya, communications and transport deputy minister Mubika Mubika and Dr Mambwe, in which he advised against the cancellation of the tender for the supply of the radar equipment and single sourcing.

Kabimba asked Mukupa if Dr Mwambwe would have been obliged to cancel the tender on the basis of substantial justification from Siliya, but he [Mukupa] said he could not answer for the permanent secretary. He said his internal memo was prompted by another memo that was written to him by Dr Mambwe, who sought advice on the matter following a letter that Siliya wrote to Kapitolo directing that the contract be cancelled.

Mukupa could not produce the letter from Dr Mambwe that prompted his advice, as contained in his internal memo, saying it was confidential information that was in the custody of the permanent secretary.

The petitioners have suggested that they would raise a subpoena of the document, as it was critical to complete Mukupa's evidence.

When judge Chitengi asked him what route Siliya should have taken had she noted any wrong things in the contract, Mukupa said the right channel of communication should have been through the permanent secretary rather than the ZPPA (formerly Zambia National Tender Board).

"My advice was that the minister had no power to cancel the tender without giving justification," Mukupa said. "The minister is not part of the procurement entity."

Mukupa said he was not aware of any direct instruction that Siliya gave to the permanent secretary over the directive to cancel the tender, apart from her letter to Kapitolo, which he said was not in line with public procurement regulations.

Mukupa said the involvement of the ZPPA was cardinal as the tender was being considered at a time, before December 12, 2008, when the Ministry of Communications and Transport's procurement threshold was only up to K20 billion.

Mukupa said tenders such as the one in contention were supposed to be taken to the ZPPA for recommendation of award before they could be taken back to the ministry for onward action. He said in his memo of advice to Siliya and others, he expressed reservations on the method that was used in identifying the first supplier, Selex Sistemi Integrati, because it did not adhere to then Zambia National Tender Board Act.

Kabimba then asked Mukupa on the status of the radar tender and he responded that Thales Air Systems of France had been sent a notification of award, even though the contract had not yet been signed.

"But a draft contract was sent to them," he said. "The contract can only be signed after negotiations then cleared by the Attorney General. Negotiations have not taken place, the bids are still valid...the bid also includes the draft contract."

Mukupa said the bids would elapse after 90 days after the date of notification of award. He said at this stage what was remaining was to negotiate with the above company.

He said a technical committee comprising people who were involved in drawing the technical specifications on the radar tender would now negotiate with the notified bidder.

Earlier, Mukupa said the major ingredient in the procurement of goods and services in the public service was the availability of funds. He said only the permanent secretary signs on any contract on behalf of the ministry after it had been cleared by the office of the Attorney General, while the head of the procurement unit would witness the act.

Mukupa, who has been working for the Ministry of Communications and Transport for about 20 years, said while he was not aware at which stage Siliya was notified of the radar tender, he was experienced enough to know that such issues were a matter of the departmental briefs that the permanent secretary gives the minister.

And judge Chitengi assured Zimba that nothing would happen to her after she was subpoenaed to testify in the matter.

The visibly unsettled Mukuka first refused to tell the tribunal her age when asked and only said she was an adult.

Judge Chirwa reminded Zimba that the tribunal she had appeared before was constituted by the Laws of Zambia and that she needed to abide by the law.