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[2015] ZAWCHC 191
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Cape Book & College Supplies CC t/a University Bookshop v Northlink Tvet College and Others (24100/15) [2015] ZAWCHC 191 (24 December 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: 24100/15
In
the matter between
CAPE
BOOK & COLLEGE SUPPLIES CC t/a UNIVERSITY BOOKSHOP
APPLICANT
and
NORTHLINK
TVET COLLEGE
FIRST
RESPONDENT
VAN
SCHAIK BOOK STORE (PTY) LTD
SECOND
RESPONDENT
NU-HORIZON
BOOKS
THIRD
RESPONDENT
CAXTON
BOOKS LTD
FOURTH
RESPONDENT
ALICANIE
TRADING CC
FIFTH
RESPONDENT
Coram
:
ROGERS J
Heard:
24 DECEMBER 2015
Delivered:
24 DECEMBER 2015
JUDGMENT
ROGERS
J:
Introduction
[1]
This is an urgent
application to freview and set aside the award of a tender by the
first respondent (‘the College’)
to the second respondent
(‘Van Schaik’). The other tenderers were the applicant
(‘CBC’), the third respondent
(‘Nu-Horizon’),
the fourth respondent (‘Caxton’) and the fifth respondent
(‘Alicanie’). CBC
seeks a substituted decision in its
favour, alternatively remittal on the basis that Van Schaik and
Nu-Horizon be excluded from
consideration.. Given the urgency and
time of year I propose to state the reasons for my decision
relatively briefly.
[2]
The tender is for
textbooks. The College issued the tender on 16 October 2015. The
tender invitation listed the textbooks and the
required quantities
per book. The tender’s closing date was 16 November 2015. There
was a compulsory pre-tender meeting which
took place on 27 October
2015. On 30 October 2015 the College notified bidders that a
particular textbook (Drawing Sets) had now
been excluded from the
tender and that certain other textbooks had been added for the
College’s Belhar campus (‘the
additional Belhar books’).
[3]
It is common cause that
Van Schaik initially failed to include the additional Belhar books in
its tender. Several days after the
tender closed (precisely when does
not appear) it submitted a quotation for the additional Belhar books.
[4]
On 20 November 2015 the
College notified the bidders that five tenders were being processed.
The aggregate prices tendered by the
five bidders were stated. Van
Schaik’s bid (R5 231 400) was the lowest. CBC’s
bid was R6 124 895.
In terms of the tender invitation the
bids were to be adjudicated in accordance with the 90/10 preference
points system contemplated
in the
Preferential Procurement Policy
Framework Act 5 of 2000
[5]
On 23 or 25 November
2015 the College’s Bid Adjudication Committee (‘BAC’)
resolved to award the tender to Van
Schaik. The BAC’s minutes
indicate that the Bid Evaluation Committee (‘BEC’) had
shortlisted Van Schaik, Nu-Horizon
and CBC. It appears that the
members of the BAC were Deon van Rooyen (‘Van Rooyen’),
the Acting Deputy Principal: Finance,
and Leon Beech (‘Beech’),
the College’s Principal and Accounting Officer. (The minutes of
the BEC have not been
furnished to CBC or placed before the court.)
[6]
On 27 November 2015 the
College notified bidders that the tender had been awarded to Van
Schaik. CBC was suspicious at Van Schaik’s
low price and made
enquiries, inter alia with a view to establishing whether Van
Schaik’s quote had included the additional
Belhar books.
[7]
On 2 December 2015 the
College’s Procurement Officer, Andre Steenkamp (‘Steenkamp’),
informed CBC’s Mr Moses
(‘Moses’) that Van Schaik
and Nu-Horizon had omitted the Belhar books but that this would not
have mattered because
if Van Schaik had bid for all the books it
would still have scored the most points.
[8]
On 3 December 2015 CBC
noted an internal appeal.
[9]
On 7 December 2015
Moses consulted with attorneys. During the course of this
consultation he received a telephone call from Van
Rooyen stating
that he had had authority to allow Van Schaik to submit a quotation
for the additional Belhar books after 16 November
2015. He
nevertheless offered Moses an opportunity for CBC to be considered
for the additional Belhar books. Moses confirmed this
discussion in
an email to Van Rooyen. The latter’s reply reads in relevant
part:
‘
Please
be advised that due to other complaints received re the exclusion of
drawing sets and then the inclusion of Belhar Campus
Text Books
during the tender process we considered best practice regarding the
exclusion of the Drawing Sets and Belhar Campus
Text Books and
evaluated on that basis the final Tender Award.’
[10]
On 10 December 2015 the
Bid Dispute Committee, the body considering CBC’s appeal,
decided that previous decisions should be
upheld. The minutes record
that Van Schaik was the cheapest, with Beech recommending that ‘we
should focus on the original
tender document’.
[11]
I think it can be taken
for present purposes that what was awarded to Van Schaik was a
contract to supply the textbooks listed in
the initial invitation
document, ie to the exclusion of the additional Belhar books. CBC
said that there were indications that
the BAC may have been under the
misapprehension that all the tenderers had bid for all the books.
However it is not possible on
the papers to make such a finding. The
scoresheet which the College has furnished
[1]
is alleged by it to have formed the basis of the adjudication. This
scoresheet was in two parts: (i) The first part dealt
with the
original list of books, deducting where appropriate the prices
tendered by bidders for the additional Belhar books and
deducting (in
Van Schaik’s case) the amount erroneously included in respect
of Drawing Sets. (ii) The second part dealt
with the additional
Belhar books, in respect of which only Caxton, CBC and Alicanie
qualified.
[12]
The present review
application was issued and served on 11 December 2015 for hearing on
24 December 2015. The notice of motion set
out the applicant’s
intended timetable. The main ground of review was that bidders had
been required to tender for the supply
of all the textbooks,
including the additional Belhar books. Because Van Schaik had omitted
the additional Belhar books from its
original tender, it should have
been disqualified.
[13]
On 22 December 2015 the
College filed a provisional answering affidavit by Beech with a
confirmatory affidavit by one Christian
Fouché (‘Fouché’),
Van Schaik’s Direct Sales Manager. On 23 December 2015 CBC
filed a supplementary
founding affidavit, having recently received
various documents comprising the College’s record. The College
also filed a
replying affidavit.
[14]
Earlier today (24
December 2015) I heard argument, with Mr Freund SC leading Mr Simonsz
for CBC, Mr Blommaert for the College and
Mr Tsegarie for Van Schaik.
Urgency
[15]
I am satisfied that the
matter is urgent. The textbooks need to be supplied before the
College’s academic year starts on 18
January 2016. CBC has not
dragged its heels, as will be apparent from the brief chronology
above.
[16]
While a hearing on
Christmas Eve is not ideal, the setting down of the application for
24 December 2015 rather than an earlier date
had the advantage that
the respondents were given as much time as possible to file answering
papers.
[17]
Mr Tsegarie, who only
received instructions yesterday afternoon (from Werksmans), said that
Van Schaik wished to oppose the application.
The only papers with
which he had been briefed were the supplementary founding papers. He
referred me to a letter dated 23 December
2015 from his attorneys to
CBC’s attorney recording that although Van Schaik had
previously indicated that it did not intend
opposing the application
its position had now changed in the light of the supplementary
founding papers.
[18]
The supplementary
founding affidavits allege inter alia that Van Schaik’s tender
was defective not only because it omitted
the additional Belhar books
but also because it omitted various books specified on the original
list. I have no doubt that it would
be unfair to adjudicate the
application on the basis of the grounds of review alleged in the
supplementary founding papers without
affording the College and Van
Schaik an opportunity to respond to those grounds. The postponement
necessary for this purpose would
mean that a decision on review could
not practically be taken in time to allow the books to be supplied
for the opening of the
academic year. This would in turn remove the
immediate urgency because CBC on review would probably then be
confined to seeking
compensation in terms of s 8(1)(c)(ii)(bb)
of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’).
[19]
However I am of the
view that the application can be decided in CBC’s favour on the
grounds advanced in the original founding
papers.
[20]
Caxton and Alicanie,
who received the application on 11 December 2015, have informed CBC’s
attorney, Mr Tappenden, that they
do not intend to participate in or
oppose the application.
[21]
Mr Tappenden contacted
Nu-Horizon on 23 December 2015 to ascertain its attitude. He was
referred to a Mr Jerome Watson (‘Watson’)
who stated that
he had received the application by email on 11 December 2015 and had
replied on the same day to say that Nu-Horizon
wished to oppose,
requesting that the application be sent to Nu-Horizon’s
attorney Mr G Mostert of Mostert & Partners.
Mr Tappenden told
him that he had received no such email. He asked Watson on what basis
Nu-Horizon wished to oppose but received
no specific response. Watson
stated that Mostert & Partners had now closed for the holidays.
Mr Tappenden nevertheless emailed
the application to Mr Mostert.
[22]
In my view Nu-Horizon
was not entitled to sit back and do nothing after the alleged email
to CBC’s attorney. The notice of
motion clearly stated that the
application was to be heard on 24 December 2015. The court cannot be
rendered impotent because Nu-Horizon’s
attorneys have closed
for the holidays.
Dispute
of fact?
[23]
Mr Blommaert submitted
that there was a genuine dispute of fact on the question whether the
additional Belhar books were incorporated
into the original tender,
to be dealt with as an indivisible part thereof, or were to be dealt
with as a separate tender. In para
18 of the founding affidavit Moses
stated that he had been informed by his colleague Bronwyn Moses, who
attended the compulsory
pre-tender meeting held on 27 October 2015,
that nothing had been said about possible changes to the tender
specifications. Beech
said the following in this regard in para 9 of
his affidavit:
‘
I
am informed and verily believe that the [version of the] meeting
referred to in paragraph 18 of the Applicant’s Founding
Affidavit is incorrect. I am informed that the bidders at that
meeting were informed that extra books might become necessary, which
will be dealt with separately. I annex hereto a list of the people
who were present at the meeting, marked “LB4”. Due
to the
closure of the College I have not been able to contact these people
in order to ascertain exactly what was said.’
[24]
Moses in his replying
affidavit denied this version.
[25]
Mr Blommaert
acknowledged that Beech’s ‘evidence’ regarding the
meeting of 27 October 2015 was hearsay because
Beech had not been
present at the meeting. He pointed out, however, that Moses’
evidence about the meeting was also hearsay
and that CBC had not
filed a confirmatory affidavit by the colleague Bronwyn Moses.
However, it is not CBC but the College which
relies on the meeting of
27 October 2015 as being relevant to the status of the additional
Belhar books. It was thus for the College
to put up admissible
evidence as to what was said.
[26]
Given the urgent nature
of the proceedings, hearsay evidence might in appropriate
circumstances be acted upon. However, the College
has had the papers
since 11 December 2015. The attendance list for the meeting of 27
October 2015, attached to Beech’s affidavit,
indicates that the
College was represented by six officials, one of whom was Van Rooyen.
As recently as 21 December 2015 Van Rooyen
was in email and
telephonic contact with Beech and with Van Schaik’s Fouché
regarding the ordering of the textbooks.
He is not incommunicado. It
must have been possible for CBC to file a confirmatory affidavit from
him or one of the other officials
who attended the meeting.
[27]
The only confirmatory
affidavit filed on behalf of the College was from Fouché. The
attendance register shows that he was
at the meeting of 27 October
2015 and he says so himself in his affidavit. He does not confirm
Beech’s version of the meeting
(whether he was asked to do so I
do not know). After stating that he attended the meeting, he says
that ‘due to an administrative
oversight’ Van Schaik did
not timeously submit ‘the Belhar portion of the tender’
(meaning, as I understand,
the additional Belhar books) but that Van
Shaik did subsequently put in a tender for the Belhar portion of the
tender, using the
same mark-up as for the ‘Northink College
portion of the tender’ (I take this latter phrase to mean the
list of books
forming part of the original tender invitation).
[28]
As Mr Freund observed
in argument, Beech’s version, even as hearsay, is not a clear
assertion that bidders were informed that
the additional Belhar books
would be separately adjudicated. Beech states that because of the
year-end closure he has not been
able to contact the relevant people
‘in order to ascertain exactly what was said’.
[29]
Apart from the absence
of clear and admissible evidence as to what was said at the meeting,
the College subsequently stated its
position to bidders in writing,
by way of its email of 30 October 2015. The writer was Steenkamp,
another person who attended the
meeting of 27 October 2015 on behalf
of the College. The subject of the email was stated to be ‘Northlink
2016 Student Textbook
list’. Steenkamp said, with reference to
the meeting of 27 October 2015, that he was attaching a spreadsheet
and that a CD
(ie containing the same information) would be available
on 2 November 2015. He proceeded (emphasis in the original):
‘
Please
Note:
·
I
refer to the tender document on the Textbook list, under Bellville
Campus, FUNDAMENTALS Level 3 and on the CORE Level 2. Please
disregard the Drawing sets.
This
item is not part of the Tender document and process.
·
On
the attached excel zip file and CD we have included the following on
Belhar folder:
Additional
NATED Textbook
list
that will form part of the Tender list and process.’
[30]
In my view this
notification is perfectly clear: the exclusion in the first bullet
point and the inclusion in the second bullet
point brought about
adjustments in what was and remained a single and indivisible tender
process. Whatever was said at the meeting
of 27 October 2015, the
written communication superseded it.
[31]
I thus do not think
there is a genuine dispute of fact on this question: the additional
Belhar books formed part of a single tender
governed by all the
conditions set out in the invitation document of 16 October 2015.
The
relevant rules applicable to the tender
[32]
It is not disputed that
the College is a public body exercising public powers. The tender
process was thus subject to a public law
principles, in particular
those relating to just administrative action, and the tender decision
constitutes ‘administrative
action’ which is subject to
review in terms of PAJA (see
Millennium
Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo
Province & Others
2008
(2) SA 481
(SCA) para 21). Immaterial irregularities do not
necessarily vitiate a tender award. However, proper compliance with
the procurement
process is necessary for legality and the strict
rules of compliance have recently been emphasised: see
Westinghouse
Electric Belgium
Société
Anonym v Eskom Holdings (Soc) Ltd & Another
[2015]
ZASCA
208
paras 36-43
where Lewis JA cited from some of the leading recent authorities and
concluded (para 43):
‘
The
tender invitation, which sets out the evaluation criteria, together
with the constitutional and legislative procurement provisions,
constitute the legally binding framework within which tenders have to
be submitted, evaluated and awarded. There is no room for
departure
from these provisions…’
[33]
The invitation document
stated that the 90/10 preference points system in terms of the
Preferential Procurement Policy Framework Act was
applicable. In
terms of
s 2(1)
of that Act it is only ‘acceptable
tenders’ that are taken into account. An ‘acceptable
tender’ is defined
in s 1 as meaning ‘any tender
which, in all respects, complies with the specifications and
conditions of tender as set
out in the tender document’.
[34]
The invitation document
in the present case specified the closing date as being 16 November
2015 at 11h00. The invitation stated
that late tenders, and tenders
submitted via email or telegram, would not be accepted. The
invitation stated, further, that tenders
had to be completed in full.
In terms of clause 3 of Section A a bidder’s proposal was
required to address all the items
listed in the proposal
specification. Failure to comply would lead to a bid being
disqualified. From these provisions and clause
16 of Section A it is
clear that what was to be evaluated was each bidder’s tender as
a whole for all the listed books and
that the successful bidder would
be awarded the contract for the supply and delivery of all the books.
[35]
The original list,
contained in annexure J to the invitation document, was as I have
said amended by way of the email of 30 October
2015. The decision to
amend the list has not been attacked by any of the bidders as being
unfair and susceptible to review. They
still had slightly more than
two weeks to exclude Drawing Sets from, and integrate the additional
Belhar books into, their quotations.
CBC, Caxton and Alicanie duly
included the additional Belhar books in their bids. According to a
letter dated 23 December 2015
from the College’s attorneys to
CBC’s attorneys (not attached to an affidavit but handed up at
the hearing), Nu-Horizon
included the additional Belhar books in its
bid but only tendered for half the requested quantities. Van Schaik
altogether omitted
the Belhar books. As noted, Fouché in his
affidavit attributed this to an ‘administrative oversight’.
He did
not suggest that Van Schaik did not have enough time to
incorporate the adjustments into its bid.
[36]
The additional Belhar
books were not a trivial or immaterial part of the tender. Based on
the tenders furnished by CBC, Caxton and
Alicanie, they represented
between 13,5% and 14,8% of the total value of the tender. Van
Schaik’s failure to cover these
books in its bid was thus a
material defect. The invitation document was quite explicit that late
bids would not be accepted. Any
fair process of procurement must have
a guillotine of this nature.
[37]
In the circumstances,
Van Schaik should have been disqualified from consideration, given
its failure timeously to submit a bid for
all the listed books.
[38]
Nu-Horizon should also
have been disqualified, since according to the College’s
attorney’s letter of 23 December 2015
its bid only included
half of the requested quantities of the additional Belhar books. The
scoresheet furnished by the College
indicates that Nu-Horizon’s
total bid was R5 562 686, of which R431 745 related to
the additional Belhar books.
CBC’s total bid was R6 124 895,
of which R826 871 related to the additional Belhar books. The
bids submitted
by Caxton and Alicanie in respect of the additional
Belhar books were higher than CBC’s bid for those books. This
is consistent
with Nu-Horizon having bid for only half the additional
Belhar quantities. (I may add that if one were to double the amount
allowed
by Nu-Horizon for the additional Belhar books, its total bid
would have been R5 994 431 as against CBC’s
R6 124 895.
Given CBC’s superior BEE points (10/10 as
against Nu-Horizon’s 8/10), CBC’s final score would have
been marginally
higher than Nu-Horizon’s.
[2]
But this is by the way if Nu-Horizon should in any event have been
excluded.)
Appropriate
relief
[39]
It will be apparent
from what I have said that I consider that the review should succeed
on its merits. CBC claims a substituted
decision in its favour,
alternatively a remittal for urgent reconsideration of the submitted
tenders on the basis that Van Schaik
and Nu-Horizon be disqualified
for non-compliance.
[40]
A court is only
entitled to make a substituted decision in exceptional circumstances
(s 8(1)(c)(ii)(aa) of PAJA). The two key
considerations in this
regard (though other factors may also come into play) are whether the
court is in as good a position as
the administrator to make the
decision and whether the appropriate decision is a foregone
conclusion (
Trencon
Construction (Pty) Ltd v
Industrial Development Corporation of South Africa Ltd & Another
2015 (5) SA 245
(CC) para 47). The College has provided the scoresheet for its
adjudication of the tender. There is no suggestion that the College
has any grounds for awarding the tender other than to the bidder who
scored the highest points. The tender was awarded to Van Schaik
on
this basis. (Clause 16.3 of Section A of the invitation stated that
in terms of the 90/10 point system under the
Preferential Procurement
Policy Framework Act ‘only
the bidder scoring the highest total
number of points may be selected’. Clause 4, on the other hand,
stated that the College
did ‘not bind itself to accept any or
the lowest tender’. On the facts of this case, I do not need to
decide which
of these apparently contradictory clauses should take
precedence.)
[41]
If, as I hold, Van
Schaik and Nu-Horizon should have been disqualified for their failure
to include the additional (or the full
quantity of the additional)
Belhar books, the remaining three compliant bids would be Caxton
(R6 113 677), CBC (R6 124 895)
and Alicanie
(R6 669 160). Although Caxton’s price is marginally
cheaper than CBC’s, CBC is entitled to 10
BEE points whereas
Caxton only has 9. CBC’s total score would thus be 99,8 whereas
Caxton’s would be 99. Alicanie’s
price is significantly
higher and its BEE points 9.
[3]
[42]
I thus think this is a
case where the outcome is a foregone conclusion. There are other
considerations in favour of making a substituted
decision. The
textbooks are required urgently. In the light of what Beech has said
about the year-end closure and non-availability
of personnel, it
seems most unlikely that the College’s BEC and BAC would be
able to finalise a reconsideration of the tender
before the books are
needed at the beginning of the 2016 academic year.
[43]
For similar reasons, it
would not seem to be a practical option for the College to cancel the
existing tender and request new tenders.
The only option, if the
existing tender were cancelled, would be for the College to order the
books without a competitive tender
as a deviation in terms of clause
4.25.6 of the recommended supply chain management policy for
institutions such as the College.
Indeed, Beech states in his
affidavit that it was on this basis that on 21 December 2015 he
authorized Van Rooyen to advise Van
Schaik to proceed with ordering
the books from the publishers. This was done in the face of an
application for review scheduled
to be heard on 24 December 2015.
There is no justification for a deviation from a competitive tender
procedure, given that there
were three compliant bids and that the
tender process is of recent provenance.
[44]
The papers do not
disclose how much Van Schaik tendered (late) for the additional
Belhar books. If one adds, to Van Schaik’s
originally tendered
price, the amount of R826 871 that CBC tendered for the
additional Belhar books, and if one subtracts
the amount of R203 064
which Van Schaik erroneously included in its bid for the Drawing
Sets, its adjusted price would be
R5 855 207 as against
CBC’s R6 124 895, a difference of R269 688.
Because CBC is entitled to 10
BEE points as against Van Schaik’
s
8
, the adjusted final scores would be 98 (Van Schaik) and 96
(CBC).
[4]
The difference is not so substantial as to justify an abandonment of
the tender process and its rules.
[45]
I have indicated that
on 21 December 2015 the College authorized Van Schaik to proceed with
the ordering of the books. This was
preceded by a letter from Van
Schaik’s attorneys to the College’s attorneys on 18
December 2015 in which they indicated
that, because of the pending
review, Van Schaik could not proceed to order the books from
publishers pursuant to the purchase order
which the College had
placed on Van Schaik. It was recorded that Van Schaik would not be
liable for any resultant delay in the
delivery of the books by 11
January 2016. On 21 December 2016 Van Rooyen, after conferring with
Beech, authorized Van Schaik to
proceed with processing the order.
[46]
At my request Mr
Tsegarie obtained instructions as to whether Van Schaik had acted on
the foregoing authority. According to Mr Tsegarie’s
instructions, Van Schaik has ordered the books from the various
publishers except for the additional Belhar books. Some publishers
will deliver next week while others will deliver upon opening after
the New Year.
[47]
I also requested
counsel to obtain instructions as to whether the bidders would obtain
the various titles from the same publishers
or from different
suppliers. Counsel were agreed, as I understood them, that, whoever
the successful bidder was, such bidder would
order any particular
title from the publisher of that book in South Africa. In other
words, if the tender were awarded to CBC by
way of a substituted
decision, it would place an order for the same books on the same
publishers as Van Schaik has recently done.
Subject only to any
marginal differences in the discounts available to CBC on the one
hand and Van Schaik on the other, CBC ought
– if all parties
act in a commercially sensible manner – to be able to step into
Van Schaik’s shoes.
[48]
I do not think in the
circumstances that I should be deterred from granting the order I
regard as appropriate by the fact that Van
Schaik has apparently
placed orders. Van Schaik and the College acted with their eyes open
in the face of a review hearing scheduled
for 24 December 2015.
[49]
Mr Blommaert submitted
that compensation in terms of
s 8(1)(c)(ii)(aa)
of PAJA would be
an adequate remedy in the circumstances of the present case. For this
reason, so he argued, I should allow the
review to be heard, after
the filing of further papers, on the court’s semi-urgent roll.
In response to a question from the
court, he placed on record that
the College would not contend, if the review succeeded in due course
on its merits, that compensation
was not a just and equitable remedy.
[50]
Compensation as a
remedy on review is an exceptional one. If it were not possible to
make a final decision now, and if the review
could only be decided at
a time when a substituted decision or remittal was no longer
practically feasible, the case might well
be an exceptional one and
compensation might indeed be an appropriate remedy. However, I do not
think that I should have recourse
to this alternative (entailing
further papers in the review proceedings and a potentially
contentious enquiry into quantum) when
it is possible to decide the
matter now and remedy it with a substituted decision.
[51]
In all the
circumstances, I regard a substituted decision as being, in the
exceptional circumstances of this case, the just and
equitable
remedy.
Conclusion
[52]
As to costs, I do not
think that Mr Tsegarie’s belated appearance for Van Schaik has
contributed significantly to the costs
of the proceedings. The
primary opposition has come from the College and it should bear the
costs.
[53]
Although the costs of
two counsel was not, to the best of my recollection, mentioned in
oral argument, the notice of motion and
the concluding paragraph of
the founding affidavit sought the costs of two counsel. Having regard
to the amount involved, the nature
of the issues, and the urgent
circumstances under which CBC was constrained to litigate, I think
the employment of two counsel
was justified.
[54]
I make the following
order:
(a) The decision of the first respondent, taken on
or about 27 November 2015, to award tender NLC/TX01/2015 for the
supply
and delivery of student textbooks (‘the Tender’)
to the second respondent, is reviewed and set aside.
(b) It is declared that any contract concluded
between the first and second respondents pursuant to the award of the
Tender,
including but not limited to any supply and delivery
agreement, is unlawful, invalid and of no force and effect.
(c)
There is substituted, for the
decision mentioned in (a), a decision awarding the Tender to the
applicant.
(d) The
first respondent is directed to pay the applicant’s costs of
suit, including those attendant on the employment
of two counsel.
______________________
ROGERS
J
APPEARANCES
For
Applicant
Messrs
A Freund SC & D Simonsz
Instructed
by
AJ
Tappenden & Co
18
McIntyre Road
Parow
For
First Respondent
Mr
A Blommaert
Instructed
by
Myburgh
Attorneys Inc
12
- 2
nd
Ave
Boston
Bellville
Second
Respondent
Mr
C Tsegarie
Werksmans
Attorneys
18
th
Floor, 1 Thibault Square
Cape
Town
[1]
Record 375.
[2]
This is on the basis of excluding Van Schaik,
which failed to bid at all for the additional Belhar books, and thus
treating Nu-Horizon
as the lowest bidder with a reconstructed price
of R5 994 431. With this as the benchmark price,
Nu-Horizon would score
a total of 98 points (90 price points plus 8
BEE points). Caxton would score 97,2 (88,2 price points plus 9 BEE
points) while
CBC would score 98,2 (88,2 price points + 10 BEE
points). (See the scoresheet record 375.)
[3]
The calculations, which I have checked, are set
out in para 50 of the founding affidavit.
[4]
This is on the basis that, on Van Schaik's
reconstructed price, it would be lowest on price and would score 90
price points as
against CBC's 86.