FAM breached procurement regulations-MBC

By Chancy Namadzunda:

A statement of claim by the Malawi Broadcasting Corporation (MBC) shows that Football Association of Malawi (FAM) flouted Public Procurement Regulations (PPR) 2020 by engaging Mibawa Televsion to be the Pay TV Host/Content Producer through Zuku TV before formally terminating pre-contract negotiation.

Filed by MBC lawyers Makiyi, Kanyenda and Associates, the claims comes days after High Court Judge Dingiswayo Madise varied an injunction obtained by the MBC to enable FAM televise only of the remaining Airtel Top-8 games.

The claim, dated November 19, 2021, indicates that FAM’s independent technical consultants notified MBC that their Expression of Interest (EOI) has been successful through a letter dated March 10, 2021 and were invited to pre-contract negotiations in March 2021.

“On divers dates from March 15, 2021, FAM and MBC representatives held meetings with the express intention to enter into legal relations. Resultant upon the said pre-contract negotiations, by letter dated March 30, 2021, FAM wrote MBC advising the latter their roles and terms of engagement,”reads part of the claim adding that MBC provided feedback which FAM responded with a draft agreement to MBC for review and feedback.

It is further claimed that based on its capacity, MBC had been allocated Central and Northern regions as its primary designated territory for the production of live and delayed football matches and that ‘the finer and other technical details concerning the roles and terms of engagement shall be contained in MOU and contracts which shall be agreed upon and duly signed by all parties upon further consultations.’

It is alleged that after MBC dully responded and submitted it’s position on the proposed Mpira TV roles and terms of engagement in order to facilitate further consultations regarding finer and other technical details for the MOU, FAM failed and refused to respond and further neglected to engage MBC’s order to facilitate eventual implementation and /or execution of the requisite MOU.

After George Kasakula was appointed Director General, the claim said MBC reaffirmed its commitment to implement the Mpira TV Project by letter of July 21, 2021, but FAM ‘inexplicably’ omitted to respond.

“The claimant was surprised to observe in the print and electronic media that the defendant has exclusively allowed Mibawa Televsion as Pay TV Host/Content Producer through Zuku TV whilst negotiations were underway between the claimant and defendant.

“Unilaterally and without notification, the defendant has elated to exclude the Claimant from providing Pay TV Host/Content Producer despite the advanced stage in the pre-contract negotiations. Yet under regulation 75 of the PPR the defendant was obliged as a procuring entity to first formally write the claimant terminating the negotiations before proceeding further with Mibawa Studios Ltd.

“Accordingly, MBC apprehended that the defendant through its conduct had unilaterally and unlawfully purported to resile from its initial undertakings and/or promises to engage in pre-contractual negotiations, “reads part of the claim adding that throughout the conduct of their dealings, FAM made representations through conduct, in writing and orally that encouraged creation on the part of the claimant a legitimate belief or expectation that the defendant would not withdraw from the pre-contract negotiations without justifiable cause.

Relying on FAM’s representations, MBC said they proceeded to invite bids for the procurement of Outside Broadcasting (OB) van work in excess of $1 000 000.

However, MBC said FAM lacks capacity to reimburse costs which have been wasted as they are currently on a fundraising initiative to meet budgetary requirements for the Malawi National Football Team to participate at the African Cup of Nations in January 2022.

“The apparent impecuniosity, under the circumstances, of the defendant renders a claim for damages unwarrantable,” reads the claim in part

The case will be heard on Thursday November 25, 2021.

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