Mulli lawyers tell court AG erred on contracts ban

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awyers representing Mulli Brothers Limited (MBL) Holdings told the High Court of Malawi in Blantyre yesterday that the Attorney General (AG) has no legal mandate to blacklist their client from participating in government contracts.

One of the lawyers, Alexius Nampota, told presiding Judge Chimbizgani Kacheche that the decision by AG Thabo Chakaka-Nyirenda to debar MBL Holdings was not backed by any law.

Making the submission on behalf of the legal team also comprising Lusungu Gondwe, Wanangwa Hara and John Kalampa, Nampota said the decision by Public Procurement and Disposal of Assets Authority (PPDA) not to extend MBL Holdings’ contract to provide warehousing and distribution services of long-lasting treated mosquito nets “was outrageous”.

He asked the court to grant permission for judicial review and  grant an order to put aside the decision by the PPDA and AG.

Nampota said they were applying for a certificate of extreme urgency because the extended period of the contract was supposed to run from August to September 2022 and involved an international donor, The Global Fund.

The extension of the contract was approved by PPDA’s Internal Procurement and Disposal Committee (IPDC), the court learnt.

It was further submitted adjustments in the contractual amount were scheduled to increase from about K500 million to around K1.7 billion.

Nampota said the IPDC approved the contract, as per PPDA minutes they had access to, and the PPDA director general (DG) had no legal mandate to override the decision of the committee.

He said: “There was an original contract which went through all the tendering processes and was efficiently performed. This contract needed to be extended further and it necessitated amendment and normal processes were followed and it was approved.”

Nampota further told the court that the PPDA DG withheld a ‘No Objection’ based on a letter the AG wrote him dated May 12 2022 which stated the recommended supplier was on the list of firms not to do business with government, effectively terminating the contract.

He said: “This court has powers to review the conduct of public officers…the decision offended Section 43 of the Constitution as he was not offered a right of audience…there are glaring breaches of the Constitution and statutory provisions.”

The lawyer argued the AG had no single legitimate power to blacklist anyone within the framework of PPDA. He said two experts were involved in adjusting the contractual price, adding Global Fund also approved.

But Chakaka-Nyirenda said the application should be dismissed because the claimant did not exhaust available remedies and instead “stole documents” he claimed were privileged information in form of minutes of the IPDC at PPDA as well as letters between PPDA DG and Secretary for Ministry of Health.

He also argued that MBL Holdings, owned by businessperson Leston Mulli, won the initial tender on the basis that it was the lowest bidder at K500 million and he further accused the supplier of colluding with officials at PPDA and Ministry of Health to extend the contract and adjust the contractual price to K1.7 billion.

The AG said other bidders that offered K600 million might have been left out. He said the PPDA minutes the claimant accessed could not have been disclosed to anyone as they are confidential, arguing this was clear evidence of collusion and a contravention to Section 34 of the PPDA Act.

The AG said there was no arguable case before the court and prayed that the matter be dismissed with costs. But in response, Nampota, citing several case authorities, argued that evidence illegally obtained could be used in court as long as it is in the interest of justice.

He said some of the evidence referred to, such as letters, were obtained by the lawyers in the course of making some inquiries.

The judge said he would deliver his determination soon as pleaded by the claimant on the basis that it concerns a contract that was expected to be executed by this September.

The court asked both parties to present case authorities cited by this Friday.