The North West Department of Public Works and Roads’ bid adjudication committee, chaired by Chief Financial Officer Peter Modika, tampered with procurement processes and changed the rules halfway through to benefit a preferred contractor that had no track record.  

According to the complete tender record obtained by African Times, the committee changed functionality criteria to pave the way for MM Industries Pty (Ltd) to win a R44 million contract in January this year.

The tender was for the patching and resealing of a road in Mmakaunyane outside Tshwane.

This was after MM Industries could not produce evidence that it completed projects in the past, thus failing to comply with functionality criteria. 

The record is part of the documents filed at the Mahikeng High Court as part of the ongoing legal battle between Lichenry Construction and North West Department of Public Works and Roads MEC Saliva Gaoage Molapisi.

The company filed papers to interdict the awarding of the Mmakaunyane contract to MM Industries. 

According to the adjudication committee report, Modika and his colleagues changed the functionality criteria in the second stage of the process upon receipt of the evaluation committee report.

They then allocated MM Industries additional points for functionality and recommended the company to the head of the department, Moss Kgantsi, who appointed it. 

The intervention resulted in MM Industries gaining more points – from 36 to 72 – and overtaking its main rival, Lichenry Construction Pty Ltd, which had been recommended by the bid evaluation committee.

Lichenry Construction PTY Ltd, based at Vereeniging in Gauteng, is owned by Henry Heathcote Junior. 

According to the record, the evaluation committee wrote “no” next to MM Industries in the responsiveness category on both compliance and functionality. However, Modika’s adjudication committee overruled the evaluation committee and resolved that the functionality criteria were “unfair”.  

“The committee discussed the functionality criteria of company work experience where it requires that bidders attach as proof, the letter of appointment and final completion certificates for projects that reached completion within 12 months prior to the advertisement of the tender. The committee felt that the criteria is unfair on the part of final completion and completion certificates. An expert opinion was sought from the outside engineers (consultants) and it was confirmed that the final completion and completion certificates are one and the same thing,” read the adjudication committee report. 

Lichenry Construction scored its first victory against the department and Molapisi in April this year. The same court ordered the MEC to hand over the complete record related to the Mmakaunyane tender.

This came after the department refused to share the record when requested by Heathcote Junior, who suspected irregularities.  

According to a court order seen by African Times, Molapisi was instructed to hand over the records to the court and Lichenry Construction in April this year.

However, the embattled politician ignored the order, resulting in the court ruling that he be jailed for 30 days unless he complied.  

“The first responded (Molapisi) be committed to imprisonment for a period of thirty (30) days, which is suspended on condition that [he] within ten (10) days from the date of service of this order by email, and Sheriff of this honourable court deliver to the Applicant and Registrar copies of the complete record of the decision relating to tender number 124/20A-FA7 styled “pothole patching and reseal of Road D604 and Z607 Makaunya,” read part of the court order. 

In the same judgment, the court further granted Lichenry Construction Pty Ltd permission to return on June 1 and apply for an order for Molapisi to be jailed for a further 90 days should he fail to hand over the complete record. 

Sources said Molapisi eventually complied albeit grudgingly.

Heathcote Junior confirmed yesterday that he filed legal papers challenging the department’s decision to award the tender to MM Industries.

However, the contractor declined to comment further, pending the outcome of the case. 

“Yes, we are challenging that award which was made to somebody else which we felt was due to us. I can’t really say anything much now because there is a court action. I don’t wanna prejudice my rights or anything in this process. It’s not like I don’t want to; I just don’t want to put the court case at risk. But, yes, we are not happy with what happened,” Heathcote Junior said.  

Matshube Mfoloe, the spokesperson for the North West Department of Public Works and Roads, said the department and its officials would not be commenting on media enquiries about the awarding of tenders until an internal investigation ordered by Molapisi was completed.  

“We have communicated to you, and all media houses, that the Department of Public Works and Roads has ordered a full internal investigation, which has subsequently been elevated to a forensic investigation by the Head of Department, Moses Kgantsi.”

“It is for that reason – and this was communicated to all media houses on our database – the Department can neither respond to any further media enquiry, nor entertain any questions henceforth related to the appointment of the contractor Ndhuna Civil Engineering including projects the company was awarded,” Mfoloe said. 

He added: “This matter is very central to the forensic investigation which is currently in full swing. Our stance to refrain from commenting on all media enquiries, should not be interpreted as an act of running away from the issue(s) which has been acknowledged already. We want to give the forensic investigating team time and space to conclude the task speedily. Whatever findings they arrive at will be made public at an appropriate time.”