KUALA LUMPUR (Aug 22): The hearing for tycoon Tan Sri Vincent Tan Chee Yioun’s Berjaya Group and Naza Group's joint venture (JV)'s application for leave (permission) for judicial review to challenge the Finance Ministry (MOF), government and Spanco Sdn Bhd over the termination of a vehicle fleet project has been fixed for Thursday (Aug 24).
High Court judge Datuk Ahmad Kamal Md Shahid fixed the hearing date for the leave application.
The JV, Cekap Urus Sdn Bhd, is 51% owned by Berjaya, 29% owned by Naza Corporation Holdings Sdn Bhd and 20% owned by Tunku Tun Aminah Sultan Ibrahim Ismail.
In the application filed on April 20 via Messrs Pierre Chuah and Associates, Cekap Urus sought leave for a declaration that the MOF and government’s decision to cancel or terminate the letter of intent (LOI) for the supply and management of government vehicle fleet, awarded to Cekap Urus via a letter dated Dec 11, 2019, is invalid, null and void, and has no effect.
It also sought a declaration that the government and the ministry’s decision to award Spanco the fleet project through direct negotiation is invalid, null and void, and has no effect.
Besides this, Cekap Urus is seeking a certiorari order to quash the government and ministry’s decision on Jan 25 this year in dismissing Cekap Urus' appeal against the decision to terminate the LOI.
It is also seeking a mandamus order to compel the government and MOF to carry out the necessary action in the letter awarded to Cekap Urus on Dec 11, 2019.
Furthermore, pending determination of the matter, Cekap Urus is also seeking a stay of the government and ministry’s decision, and damages and costs to be assessed.
In the affidavit in support by Cekap Urus director Datuk Abdul Rahim Mohd Zin, sighted by The Edge, the company claimed that Spanco was offered the concession agreement for a period of 25 years from October 1993, for the vehicle fleet project. When it expired in December 2018, the government decided to select a new concessionaire and came out with a request for proposal (RFP).
Naza initially submitted its bid sometime in November 2017, but the RFP was terminated, and the government through the Public Private Partnership Unit at the Prime Minister’s Department (Ukas) offered Naza to re-submit its bid, and the company made its second bid in April 2018.
Following the 14th general election, Cekap Urus claimed that the second RFP was terminated and a new RFP was made in January 2019. Naza and Berjaya through Cekap Urus made a joint bid for the new RFP on Feb 28, 2019.
Spanco also made a bid for the project, which is for a period of 15 years, said Abdul Rahim.
Bid success and first meeting
Abdul Rahim claimed that after the LOI was issued, Cekap Urus was invited to the first meeting with the MOF's Public Asset Management (PAM) on Jan 9, 2020, which was chaired by PAM secretary Dr Anuar Ariffin and head of vehicle management Azizatul Yusna Ahmad Yusuff.
“The meeting was not only unfruitful and it started to raise a lot of questions and doubts about transparency and genuineness of the negotiations to process and finalise the draft contract,” alleged Abdul Rahim.
Abdul Rahim said in the meeting, the company was told of the need to amend the draft contract and resubmit again. He further claimed there were adverse comments made about the JV’s joint bid. One of those comments, he alleged, was as if speaking on behalf of Spanco and further undermined Cekap Urus as the winner of the fleet project.
He further alleged that Cekap Urus received credible information that a video recording of the meeting had made its way to Spanco, the incumbent concession holder of the fleet. He also claimed the draft contract had been leaked and circulated.
Following this, the plaintiff claimed that it wrote to the deputy secretary general of Treasury (Investment) on Jan 20, 2020, to place on record its concerns over the purported leak and plead for the finalisation of the draft contract.
It further submitted a letter to then finance minister Lim Guan Eng on Jan 21, 2020, to complain about the purported leaks and wanted one of the two officers who was present, i.e. Azizatul Yusna, to be removed from the committee to negotiate the draft contract.
Cekap Urus claimed that it had two subsequent meetings with Ukas and other relevant parties after that in January and February 2020, where the company was required to provide further explanation and supporting documents on the calculation method employed and revise it to make it cheaper.
On Feb 14, 2020, Cekap Urus had provided a written explanation on the calculation and rental rates, and at the same time wrote to Lim to express again its dissatisfaction that Azizatul Yusna was totally unfit to negotiate the draft contract.
Cekap Urus claimed that it was invited to four other meetings between Feb 24, 2020 and March 5, 2020, to discuss the draft contract.
Change in country’s landscape but hopeful
Abdul Rahim claimed that after many meetings, the government and MOF want to finalise the contract.
There was a change in the political landscape in March 2020 that led to Tan Sri Muhyiddin Yassin becoming the prime minister, and despite this, Cekap Urus was hopeful the change would not affect the negotiation process of the fleet project.
Cekap Urus claimed it had written to Muhyiddin on March 16, 2020 and then newly appointed finance minister Datuk Seri Tengku Zafrul Abdul Aziz on April 1, 2020, to highlight that its bid for the fleet project was the cheapest compared to other bidders with a saving of RM1 billion, throughout the concession period.
A movement control order was issued on March 18, 2020, and extended until May 12, 2020, and in view of the deadline to finalise the contract by June, the firm wrote to the Treasury secretary general to request an extension, and an extension until Dec 31, 2020 was allowed.
Several more meetings were held subsequent to this, and Abdul Rahim said in the affidavit that despite compliance with the requests, there had been little progress made regarding the finalisation of the draft contract.
He further claimed that Spanco has been spreading propaganda alleging that Cekap Urus was unable to fulfil or undertake the fleet project.
In September 2020, Ukas attached the reviewed draft contract and comments by the Attorney General's Chambers, and raised concerns that the shareholders of Cekap Urus were not Berjaya Corp or Naza but its subsidiaries.
Abdul Rahim alleged that on Sept 10, 2020, Cekap Urus replied to the comments and complied with the change of shareholders and notified the government and MOF.
At the end of September, the company found out that its LOI would be terminated on the issue of shareholders, and Cekap Urus claimed that this should be a non-issue as it had rectified the matter.
On Dec 4, 2020, the company wrote again to Ukas to expedite the formalisation of the contract, and despite this, it alleged that the government and MOF decided on Dec 22, 2020 to terminate or cancel the LOI.
Tan had last month revealed the JV company had filed the suit following the termination of the LOI.