HARARE -- Zimbabwe's parliament has heard how the Zimbabwe Power Company (ZPC) ignored legal advice against awarding controversial businessman Wicknell Chivayo's company, Intratek, the tender to construct a 100-megawatt (MW) solar power plant in Gwanda in Matabeleland South province.

The National Assembly heard on Monday that Intratek Zimbabwe was awarded the 200 million US dollars tender after having initially failed the bid which it had lost to a Chinese firm, China Jiangxi. After its initial failure in 2013, Chivayo protested the decision by writing to then Energy Minister Dzikamai Mavhaire leading to negotiations which eventually led to the cancellation of the winning tender.

According to the law, Chivayo was supposed to approach the Administrative Court to register his displeasure over the tender process. He was subsequently awarded the tender in 2015 but his company has since admitted that it does not have the financial capacity to carry out the project, despite having been paid 5.0 million USD for pre-commencement works.

A ZPC legal adviser told the Parliamentary Portfolio Committee on Mines and Energy that suspended ZPC managing director Noah Gwariro ignored the legal advice.

We are there as legal (advissers) to give an opinion to the managing director or accounting officer when it is requested for. In this case it is only an opinion, he has to take it or use his discretion that is as far as we go

as legal and in this case we gave an opinion and at the end of the day he had the final decision as the accounting officer, he said.

In this case due process was not followed. We gave a legal opinion that due process should be followed, in terms of following tender procedures.

Gwariro has since been suspended to pave way for investigations into the payment of the 5.0 million USD to Intratek without the required bank guarantee.

ZPC board chairman Stan Kazhanje admitted the error, but highlighted that management had bypassed the board in making the decision to award the tender. As a board we did not receive an item to discuss whether due process was followed or had not been followed, he said.

Earlier, Procurement Regulatory Authority of Zimbabwe chief executive officer Nyasha Chizu said the negotiations that were allowed to take place leading to the cancellation of the initial tender were illegal.

The former Procurement Act stated that no negotiations were allowed to take place between a procuring entity and a supplier in respect of a tender submitted by the supplier.

Initially the State Procurement Board rejected the negotiations, but later the negotiations were allowed and the executive chairman was the authority and there was nothing that could be done, he said referring to former SPB chairman, the late Charles Kuwaza.

This is the only case where there were issues of negotiations. What we know is that if anyone is aggrieved by the process they go to the administrative court.

Chizu also said according to the old Procurement Act, the ZPC should have disqualified Chivayo due to his criminal record. Chivayo was in 2004 convicted and sentenced to three years jail with labour for theft by false pretences.

So in terms of the supplier China Jiangxi was the company that had been awarded and the process was supposed to end there, he said.