In its May 2020 decision in ABB Namibia (Pty) Ltd. v. The Central Procurement Board of Namibia, the High Court of Namibia ruled that bid protest discovery disclosures should be made under oath to deter selective and incomplete disclosures. The case dealt with a dispute between Namibia’s Central Tenders Board, and a losing bidder who challenged one of the Board’s contract award decisions. As part of its bid protest, the complainant made a discovery request for the disclosure of relevant documents and insisted that the disclosure be provided under a formal sworn oath. As the Court summarized, the purpose of discoveries in civil disputes is to provide the other party with relevant information about the case:
I am of the considered view that the word ‘discovery’ is a term of art. It denotes the special production of documents or other material, relevant to the determination of a lis, usually upon notice issued by the opposing party. According to Herbstein & Van Winsen, ‘The term ‘discovery’ is used to describe the process by which parties to a civil cause (action, application or proceeding) are enabled to obtain, within certain defined limits, full information of the existence and the contents of all relevant documents or (tape) recordings relating to any matter in question between them and which are, or have been, in their possession, custody or power or in the possession of their agents, attorneys or any other persons on their behalf. The function of discovery is to provide the parties with the relevant documentary or recorded material before the hearing so as to assist them in appraising the strength or weakness of their respective cases, and thus to provide the basis for a fair disposal of the proceedings before or at the hearing’.
While the Board disputed the need to make the disclosures under a formal oath, the Court ruled that this formality was required to serve as a deterrent against incomplete disclosures:
When one has regard to discovery elsewhere in the rules, particularly in relation to action proceedings, that is a process done under oath right from the beginning. In the instant case, I am of the considered view that an oath accompanies or should accompany the discovery required at this stage.
…
Because as I have stated, the mode of requiring the documents or recordings, as the case may be, is a formal notice, it stands to reason that the response by the respondent, should be under oath. This is so because as correctly stated, there may be documents that were in the respondent’s possession or control that may no longer be or some of which may have been destroyed or are for some other reason no longer available.
Without in any way imputing bad faith to the respondent, it is important that any question or doubt regarding the absence or unavailability of the documents should be stated on oath, with the deponent appreciating the seriousness of the occasion and moment, because those documents required are considered crucial or critical to the determination of the matter. It is thus important for the court and the applicant to know, without a shadow of doubt that the documents made available are the only ones in the possession of the applicant and that the documents not availed are so not availed for nefarious purposes but on genuine grounds that the discoverer has no qualms placing on oath.
As the Court explained, providing discoveries under oath is important since “otherwise, some unscrupulous respondent…may be tempted and proceed to pick and choose the documents they discover in order to conduce to the prospects of their success, to the detriment of the truth… knowing full well that they stand to suffer no personal reprisals from their deliberately guided (non-) disclosure.” Citing a leading decision on point, the Court stressed that making disclosures under oath is more than a mere formality since the failure to make a full disclosure would subject the individual in question to potential perjury charges:
The importance of the oath in discovery applications, although mentioned in a different context, still augers well for the present matter. In Gamikaub v Schweiger, a case cited by the applicant in its heads of argument, the court expressed itself as follows at para 22:
‘A word of caution is in this regard in my considered view necessary. Persons who depose to discovery affidavits, whether in relation to personal matters or in a representative capacity, must appreciate that that exercise is a serious and solemn matter. The fact that the standard wording is employed in the relevant forms of the rules of court does not in anyway detract from the seriousness of discovery affidavits, particularly viewed in relation to the oath taken or affirmation made as the case may be. The words reproduced in the relevant form are not mere incantations that may be repeated with no consequence if proved to be untrue. The failure to make a full and proper disclosure when an oath or affirmation to the contrary has been made, opens the deponent to possible perjury proceedings, which is a serious matter that may result in the deponent forfeiting his or her liberty for a season. This is therefore a procedure that must be undertaken conscientiously and truthfully. It must not be allowed to degenerate into a sacrilege.’
As the Court concluded, it is “important, to give the process the seriousness and dignity it deserves in the matter by requiring the authority of a signature under oath or affirmation” since “anything less may leave questions and doubts abounding as to the accuracy, correctness and completeness of the statements conveyed in a letter.”
As this case illustrates, the disclosure duties that apply to bid protest proceedings can be subject to strict legal standards. This heightens the importance of maintaining proper records of evaluation and award decisions since the failure to create and maintain those records can result in downstream difficulties in honouring bid protest disclosure duties and in defending those contract award decisions against challenge.
