UDC inherited road project marred by administrative failures - Bowmag

Nearly a decade after the Francistown–Matsiloje road project was awarded, what began as a P29.8 million contract has become one of Botswana's most protracted infrastructure disputes, with Government now budgeting P150 million to complete the road.

While the UDC administration inherited the matter from the previous government, Bowmag Construction owner Abednico Malepa says the dispute cannot be understood without examining the series of decisions that preceded the change of government.

According to Malepa, official correspondence, internal ministerial reports, legal opinions, settlement agreements, Dispute Adjudication Board (DAB) rulings and the findings of a 2021 Office of the President investigation reveal a history of administrative failures that ultimately left taxpayers carrying a far greater financial burden.

Malepa disputes the long-held assertion that Bowmag's contract was terminated because of poor performance. He says progress on the project was severely affected by the absence of suitable construction materials within the project area, while the contract itself made no provision for hauling materials from alternative sources.

According to him, the company repeatedly alerted the Roads Department to the problem, but little was done to address it.

He further says an internal report prepared by the then Director of Roads, which has been seen by this publication, paints a very different picture from the one that has been presented publicly over the years.

According to Malepa, the report concluded that the project had been mismanaged by the Ministry itself, citing conflicting instructions issued by Head Office and regional project managers, and warning that failure to resolve the matter would expose Government to colossal financial losses.

According to Malepa, the Ministry's own legal advisers later reinforced those concerns. He says that in January 2018, the Senior State Attorney stationed at the Ministry advised that the termination of Bowmag's contract had been unlawful and urged the Ministry to act urgently to minimise Government's financial exposure.

Instead, Malepa contends, the dispute was allowed to escalate, resulting in years of litigation and mounting costs. He says the Ministry subsequently invited Bowmag to negotiate an amicable settlement, culminating in the signing of a Settlement Agreement on 15 February 2019.

According to Malepa, the agreement revised the commercial terms under which the contractor would return to complete the works. He says the agreement was later confirmed by the Dispute Adjudication Board on 24 February 2020, making it binding on both parties.

Despite this, Malepa alleges that the Ministry failed to honour the agreement and never reinstated Bowmag to the site, even though Roads Department officials allegedly wrote several letters assuring the company that it would return to continue the works.

He argues that the Ministry only partially complied with the DAB ruling by compensating the contractor for idle plant while failing to implement the order directing that Bowmag be reinstated to the project. According to Malepa, the Attorney General's Chambers subsequently advised the Ministry to comply with the DAB decision.

Instead, he says, the Ministry instituted High Court proceedings in an attempt to overturn the DAB ruling, despite earlier legal advice warning of the financial consequences of prolonging the dispute and internal reports which, according to him, pointed to shortcomings within the Ministry's own management of the project rather than wrongdoing by the contractor.

Malepa also points to what he describes as another missed opportunity to resolve the matter. He says that in December 2020, the Ministry revoked the termination and offered to reinstate Bowmag. However, the offer required the contractor to complete the project at the original 2015 contract price.

According to Malepa, Bowmag regarded the proposal as commercially unworkable because the cost of fuel, labour, bitumen and other construction materials had increased substantially over the intervening five years. He argues that accepting the offer would have been financially impossible and inconsistent with the revised settlement previously negotiated between the parties.

Malepa further relies on the findings of a 2021 investigation by the Office of the President, which he says examined the Ministry's handling of the dispute.

According to him, the investigation raised concerns about the conduct of officials involved in the matter, warned of the substantial financial prejudice suffered by Government and recommended that those responsible be investigated, disciplined and held accountable. He says those recommendations remain outstanding.

The matter resurfaced in Parliament this week when Assistant Minister of Transport and Infrastructure Keoagile Atamelang updated Members of Parliament on the status of the project. Atamelang said the original P29.8 million contract had been terminated in December 2016 after the contractor had completed only 12 percent of the works.

He said Bowmag later challenged the termination before the DAB, which awarded compensation for idle equipment and ordered the contractor's reinstatement. The Ministry, he said, subsequently approached the High Court to challenge the reinstatement order.

Atamelang also told Parliament that Government has now budgeted P150 million to reconstruct the 45-kilometre road, but efforts to procure a new contractor were halted after Bowmag obtained a court interdict.

The project has also come under scrutiny before the Public Accounts Committee (PAC), where the Ministry's Permanent Secretary was questioned about the prolonged dispute.

According to Malepa, the Permanent Secretary told the Committee that the matter was before the courts but did not address questions relating to the history of the project, the Ministry's handling of the dispute or previous findings made by investigators.

Malepa argues that many of the Committee's questions dealt with administrative decisions, legal advice, settlement agreements and the expenditure of public funds, matters which he believes warranted substantive responses despite the ongoing court proceedings.

Malepa disputes any suggestion that Bowmag initiated the broader court battle. According to him, it was the Ministry that first approached the High Court after refusing to implement the DAB ruling.

He says Bowmag only sought an interdict years later after the Ministry attempted to award the remaining works to another contractor while its own court challenge against the DAB decision was still pending.

According to Malepa, the interdict was necessary to preserve Bowmag's contractual rights and prevent the project from being awarded to a third party before the underlying dispute had been resolved.

Malepa argues that the parliamentary update leaves unanswered the questions that have accumulated over nearly ten years.

He maintains that the current UDC administration inherited a dispute that was years in the making and says resolving it will require more than awaiting the outcome of court proceedings. According to Malepa, the courts became involved because of decisions taken under the previous administration.

He says the current administration now has an opportunity to confront those findings, establish accountability where wrongdoing is found and finally complete a road project that has escalated from P29.8 million to an estimated P150 million, at significant cost to the taxpayer.