Three judges of the Windhoek High Court have ordered the Neckartal dam construction tender overturned and the process to go back to the tender board.

Judge president Petrus Damaseb and judges Shafimana Ueitele and Dave Smuts set aside the awarding of the tender to Italian firm Salini and referred the matter back to the tender board with an order that the tender should be newly awarded in a manner that is consistent with the judgment of the court.

The high court challenge was initiated by another company that tendered for the project, CSC Neckartal Dam Joint Venture – a consortium of South African, Italian and Lebanese companies.

The dam, to be built in the Fish river, some 40 km west of Keetmanshoop, in southern Namibia, has a price tag of N$2.87-billion.

The court found that the tender board was uninformed and that Knight Piésold Consulting (KPC) had recommended that another company – one of three short-listed for the project – Vinci-Orascom Joint Venture, be awarded the tender.

Further to this, the board was not informed of a proposal by the joint evaluation committee, comprising engineers from KPC and officials from the Ministry of Agriculture, Water and Forestry, that clarification from the companies be obtained about key staff involved in the project. This, the court said, amounted to material nondisclosure.

In the way the process was dealt with, the court said the board only had access to the views of the Ministry officials and not also those of the Neckartal steering committee, as it should have had.

According to the court, “The opposing views of the expert consultants as to who should be recommended and why, were not disclosed to the tender board. This, in our view, also amounts to a material nondisclosure. The cumulative effect of the failure to disclose those first three facts is, in our view, devastating to the legality of the decision-making and deprived the tender board from being able to apply its mind properly to the enquiry before it,” the judges said.

The court ordered that the costs be paid by the ministers of Finance and Agriculture, Water and Forestry, the tender board and Salini.

The Neckartal dam tender has been fraught with problems and this will be the third time it returns to the tender board. In December 2011, the tender was awarded to a Chinese firm, China Henan International Cooperation Group, but was later cancelled.

On March 14, this year, the tender was awarded to Salini after it, Vinci-Orascom and CSC Neckartal Dam Joint Venture were short-listed. The bids were evaluated by the Neckartal steering committee, which was appointed by the Ministry of Agriculture, Water and Forestry and KPC, before a recommendation from the Ministry was forwarded to the board.

CSC Neckartal Dam Joint Venture’s tender price of N$2.72-billion was the lowest of the three considered by the board. The bids of Salini and Vinci-Orascom were both around the N$2.87-billion mark.