Firm drags PRAZ, ZIMDEF to court

According to court papers, ZIMDEF published a notice calling for a tender for the provision of the SAP software support services in October 2021, in which TTCS participated TWENTY Third Century Systems (TTCS), a local provider of digital software and hardware solutions is embroiled in a legal dispute with the Zimbabwe Manpower Development Fund (ZIMDEF) and the Procurement Regulatory Authority of Zimbabwe (PRAZ) over a contract awarded to a rival digital company.

This follows the awarding of a contract by PRAZ to Tigo Digital Solutions Services (TDSS) and its subsequent implementation before a resolution had been made after TTCS challenged a tender clause requiring bidders to be holders of SAP license. SAP is a Germany-based software group operating in nearly 110 countries.

According to court papers, ZIMDEF published a notice calling for a tender for the provision of the SAP software support services in October 2021, in which TTCS participated. TDSS also submitted its bid. After submitting its bid, TTCS filed a notice with PRAZ in November 2021 challenging the requirement for bidders to have an SAP license, which it does not have.

TTCS argued that the condition was “restrictive, unreasonable and anti-competitive” as it did not promote competition among the bidders. In January, PRAZ wrote to TTCS advising a review panel had been formed to look into the dispute. While the determination was yet to be made, PRAZ granted the tender to TDSS.

ZIMDEF and TDSS went on to implement the contract. Meanwhile, Germany-based SAP, the world leader in enterprise software and software-related services had earlier advised PRAZ that where contractors are non-SAP partners, they can offer SAP services as long a they have SAP-certified consultants and experience.

In a bid to stop the execution of the tender, TTCS filed a High Court application seeking to set aside the decision by PRAZ awarding the tender to TDSS before the determination was made by the review panel.

On March 30, High Court judge Justice Owen Tagu ruled in favour of TTCS. In granting the interim relief, Justice Tagu ruled that pending the determination of the TTCS court application, the implementation of the contract should be suspended, according to court papers.

ZIMDEF then filed a notice of appeal with the Supreme Court seeking to set aside the interdict.

“The noting of the appeal by the first respondent (ZIMDEF) thus suspends the operations of the judgment of (Justice) Tagu, delivered on 30th March 2022,” Mr Michael Goneso, managing director of TTCS argues through a founding affidavit to the High Court. “It entails that the tender execution process may now continue notwithstanding the judgment of this court suspending it. This has necessitated the filing of the present application for leave of execution pending the determination of the appeal.

“I am advised that in an application for leave to execute pending appeal the following factors are considered. First…the potentiality of irreparable harm and prejudice to the applicant (TTCS) if the leave to execute is refused or the potentiality of irreparable harm and prejudice to the respondent, if the leave to execute, is granted.

“Second, the prospects of success of the appeal, whether the appeal is frivolous or vexatious or has been noted not with the genuine intention of correcting a genuinely perceived wrong but merely in order to buy time.”

“I aver that the execution of the tender award ought to be stayed until the resolution of the court application for review. This is so as the award of the tender to the third respondent (TDSS) is blatantly unlawful and will be set aside.

“It is just and in accordance with demands of substantial justice that the tender execution be stayed pending resolution of all challenges that have been made against the procurement entity (PRAZ).”-The Herald