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[2013] ZASCA 102
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South African National Road Agency Ltd v The Toll Collect Consortium and Another (796/2012) [2013] ZASCA 102; [2013] 4 All SA 393 (SCA); 2013 (6) SA 356 (SCA) (12 September 2013)
Links to summary
REPORTABLE
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 796/2012
In the matter between:
SOUTH AFRICAN NATIONAL ROADS
AGENCY LIMITED
..........................................................................
.
Appellant
and
THE TOLL COLLECT CONSORTIUM
.............................
First
Respondent
TOLCON LEHUMO (PTY) LTD
......................................
Second Respondent
Neutral citation:
SANRAL v The Toll Collect
Consortium
(796/2012)[2013] ZASCA 102 (12 September 2013)
Coram:
NUGENT, BOSIELO, WALLIS and PETSE JJA and
SWAIN AJA.
Heard: 30 AUGUST 2013
Delivered: 12SEPTEMBER 2013
Summary: Tender – review of decision to award –
transparency and objective standards – what constitutes –
no need to disclose basis for evaluating tenders.
ORDER
On
appeal from: KwaZulu Natal High Court, Durban (VahedJ sitting as
court of first instance) it is ordered that:
1.
The appeal is upheld with costs, such costs to include the costs
consequent upon the employment of two counsel.
2.
The order of the court below is set aside and replaced with the
following order:
‘
The
application is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.
JUDGMENT
WALLIS JA
(
NUGENT, BOSIELO and PETSE JJA and
SWAIN AJA
concurring)
[1] The appellant, SANRAL, which has responsibility for
South Africa’s national roads, invited tenders for the
operation of
the N2 South Coast Toll Plaza. Four tenderers submitted
tenders, and the contract was awarded to TolconLehumo (Pty) Ltd, the
second
respondent. The first respondent, a consortium of three
companies operating under the name of The Toll Collect Consortium
(the
Consortium), was dissatisfied at the fact that its tender was
unsuccessful and brought review proceedings in the KwaZulu Natal High
Court, Durban, challenging the award of the tender. The review
succeeded.Vahed J set aside the award and ordered SANRAL to
reconsider
the tenders in the light of his judgment, subject to the
qualification that no-one involved in the original assessment of the
tenders
should be involved in the fresh evaluation. This appeal is
with his leave.
[2] The tender documents provided that the assessment of
tenders would take place in two stages. First they would be assessed
for
quality and given a score out of 100. Failure to receive 75 or
more points would result in the automatic disqualification of the
tender irrespective of price or other considerations such as Black
Economic Empowerment (BEE). Thereafter the remaining tenders
would be
assessed based on price, contribution to BEE and other matters. The
Consortium’s tender was disqualified at the
first hurdle in
that it received only 64.49 points on the quality assessment. It
accepted that unless it could successfully challenge
this assessment
its tender was properly disqualified and the review could not
succeed. The primary issue in considering the appeal
must accordingly
be the complaint in regard to the quality assessment. However, it is
first necessary to deal briefly with two
preliminary points raised by
SANRAL
[3] The first point was that the Consortium lacked
locus
standi
to institute these proceedings under
that name. There is no merit in this. If it was permissible, as it
undoubtedly was, for the
Consortium to tender for this contract under
that name and title, as representing the three companies making up
the Consortium,
it must likewise have been permissible for the
Consortium, under that name and title and still representing the same
three companies,
to challenge by judicial review the award of the
tender. The second point related to the jurisdiction of the court
below. As the
contract flowing from the tender fell to be performed
within its jurisdiction it clearly had jurisdiction to deal with a
challenge
to the award of that contract by way of judicial review.
That point was also bad. I turn then to consider the issue in
relation
to the evaluation of quality under the tender.
[4] The tender documents dealt with the quality
assessment in the following way. Item F3.11.3 in the tender data
said:
'The score for quality will be based on the evaluation of the
management proposals submitted by the Tenderer in terms of returnable
schedule Form D4.'
Item F3.11.3 went on to set out three broad quality
criteria and the maximum score in respect of each criterion, those
being 45
points for toll operations and maintenance; 50 points for
toll systems and maintenance and 5 points for electrical and
mechanical
maintenance. No further breakdown was given of how the
scores would be assessed by the independent adjudicator appointed by
SANRAL
for that purpose.
[5] Form D4, attached to the tender, set out in some
detail a number of items that had to form part of a Management
Proposal by
prospective tenderers.Tenderers were required to provide
a clear statement in respect of ‘at least the following
information’
using the headings and sub-headings listed in a
table forming part of the form. The table was divided into three main
parts headed
‘toll operations’, ‘toll system’
and ‘electrical and mechanical system’ respectively.
Plainly
those covered the three heads under which the quality score
was to be assessed. Each head was then broken down into a number of
sub-headings. Toll operations dealt with organisational structure,
financial management, traffic management, risk management, quality
assurance, environmental management, safety and security and ‘other’.
Toll system covered organisational structure,
financial standing,
risk management, quality assurance, environmental management, past
performance, a detailed toll system roll
out programme and ‘other’.
Electrical and mechanical systems repeated five of the items
appearing under the other heads
together with ‘other’.
There was accordingly a substantial overlapamong the three heads.
This does not appear to have
disconcerted the Consortium as its
tender dealt with these items exhaustively in 67 pages, together with
several hundred pages
of annexures.There is no evidence to suggest
that the Consortium queried these items or sought any additional
explanation as to
the manner in which they would be taken into
account in adjudicating quality.
[6] The tender evaluation was first undertaken by an
independent firm called Tolplan Operations (Pty) Ltd and then a
formal tender
evaluation was undertaken under the direction of
SANRAL’s regional manager in Pietermaritzburg. Each of the
three components
that were to be scored was further broken down and
the available points distributed among the various sub-headings. Thus
‘toll
operations’ was separated into organisational
structure,which was allocated 20 points, and proposed operations
management,
to which the remaining 25 points were allocated. Under
organisational structure 5 points each were allocated for the
proposed route
organogram and the quality of key personnel and the
remaining 10 points were given for staff salaries. The first four
sub-items
under proposed operations management were each allocated 5
points and the last two 2.5 points.
[7] A similar exercise was undertaken in respect of toll
systems. Each of the sub-items identified in D4 under this head was
allocated
marks totalling 20 in all. The balance of 30 marks was
reserved for ‘toll system technical analysis’. This
latter item
was treated as the ‘most critical management and
control tool’ for the project. The Consortium did not raise any
objection
to this item or to the score that it was allocated under
it. The complaints it makes in respect of its score for toll systems
repeat
its complaints in respect of three corresponding items under
‘toll operations’ and they can conveniently be dealt with
together with those items. Under the last heading of maintenance of
technical and mechanical systems the Consortium lost points
in
relation to its technical manager, technician and non-use of a
specialist sub-contractor.
[8] In relation to this scoring exercise Mr Ibrahim, who
deposed to the affidavits on its behalf, said:
‘…
I shall not perform an analysis of
the points scored by the successful tenderer (ie the Second
Respondent).The issue is not whether
the Applicant ought to have
scored more points than the Second Respondent for quality but rather
whether the Applicant should have
met the threshold of 75% for
quality. It may, however, in some instances be necessary to draw a
comparison between the Applicant’s
points and the Second
Respondent’s points to indicate that the points awarded to the
Applicant were erroneous.’
Before dealing with that contention it is necessary to
address what became in argument the primary issue raised on behalf of
the
Consortium. It is an issue that logically precedes any criticism
of the scoring, because it claims that the process was deficient
from
the outset in consequence of a non-disclosure to tenderers.
[9] The foundation of the contention
was the fact that the more detailed breakdown in the scoring system
for quality described above
in paras 6 and 7was not disclosed to
tenderers. The heads of argument on behalf of the Consortium
expressed the complaint in the
following way. The absence of the
breakdown in scoringwas said to result in the tender adjudication
processbeing neither transparent
nor objective. It was submitted that
the obligation to disclose this information flowed from SANRAL’s
Supply Chain Management
Policy and Procedure Manual.Item 1.9.3.3of
the Manual said,in regard to assessments of functionality (quality)
such as this one,
that when inviting bids an institution must
indicate the evaluation criteria for measuring functionality; the
weight of each criterion
and the applicable values. Some reliance was
also placed on the requirement of the Preferential Procurement Policy
Framework Act
(the PPPFA).
1
The
submission in the heads of argument was that the three broad headings
did not comply with these requirements, as ‘none
of those
headings would themselves be measured at all’. On that footing
it was submitted that the tenderers should have been
furnished with
the weights and values of each sub-item in advance of submitting
their tenders.
[10] SANRAL contended that the point was not open to the
Consortium because it was not foreshadowed or developed in the
affidavits
delivered on its behalf. Furthermorethere was no
indication that any prejudice flowed from the non-disclosure of this
detail. It
rejected the contention put forward in the heads of
argument on behalf of the Consortiumthat this afforded an advantage
to the
existing operators who tendered because they ‘would have
a better understanding of what criteria were regarded as important
to
SANRAL, and the relative importance of them.’ Lastly it
contended that the invitation to tender indicated with sufficient
clarity how the overall scoring for quality would be undertaken and
gave clear instructions as to the areas of concern to SANRAL
so that
all tenderers were aware of the information they needed to put
forward in support of their tenders.
[11] In support of this final point
SANRAL relied on the passage in
Minister
of Environmental Affairs and Tourism & another v Scenematic
Fourteen (Pty) Ltd
,
2
where
Scott JA said:
‘
A further point made by the respondent was
that the applicants for fishing rights ought to have been told in
advance of the procedure
to be adopted, involving as it did the
streaming of the applications into two groups and the use of a
scoring system applied to
predetermined criteria. It was argued that
the failure on the part of the DDG properly to advise applicants
rendered the allocation
process procedurally unfair. Section 3(2)
(a)
of PAJA expressly provides that what is
procedurally fair depends on the circumstances of each case. In the
present case the applicants
for fishing rights were required to
complete a detailed application form which indicated precisely what
information was required.
It was accompanied by instructions on how
to complete the form and guidelines setting out in broad terms the
considerations which
the decision-maker regarded as material for the
purpose of making the allocations. An applicant would therefore have
been fully
aware of the information that was required and on which
the allocations were to be made. In these circumstances, the
decision-maker,
in my view, was not required to explain in advance
exactly how the applications would be processed. As Baxter
Administrative Law
at
548 puts it:
“
The administration cannot be
expected to share with the individual every phase of its final
decision-making process.”’
[12] The Consortium’s contentions found favour
with the court below. It held that it was incumbent on SANRAL to set
out its
benchmarks ‘up front’ so that a tenderer would
know how to achieve the pre-determined scoring. The learned judge
summarised
his conclusion as follows:
‘
It seems to me therefore, that if the first
respondent wanted to assess and score quality and functionality on
that basis, and more
especially if quality and functionality was to
serve a gatekeeper function, objectivity, rationality and
functionality demanded
more clarity on how prospective tenderers
could get through the gate.’
For that reason the award of the tender was set aside
and SANRAL was ordered to reassess the tenders in the light of the
judgment
but without using the same individuals to make the
assessment.
[13] Two problems emerged with this order in the course
of argument. The lesser one was that there was no basis for
disqualifying
the persons who had initially evaluated the tender from
re-evaluating it. They were not accused of bias or mala fides or any
other
conduct that would warrant their disqualification. Accordingly
that order should not have been made. A court should not lightly
disqualify officials and others who have the responsibility for
administrative tasks and acts, such as the evaluation of tenders,
from performing their duties. It emerged from counsel’s
submissions that the order had been sought in the light of an alleged
failure by the relevant officials to co-operate in providing
information, butthat problem had been resolved before the case was
argued. Continuing to seek their disqualification was accordingly an
error.
[14] The major problem was that the order did not
address the difficulty the court identified in regard to the tender,
namely the
failure to inform tenderers in advance of the detailed
breakdown of the possible scores under each of the headings used in
the
evaluation of the tenders. If there was a problem with the
failure to afford tenderers adequate insight into the evaluation
process
it would not be resolved by remitting the tenders, formulated
without the benefit of that information, for re-evaluation. Only
setting aside the tender process and requiring SANRAL to undertake it
afresh on the basis of adequate information could resolve
it. But
that relief was not asked for.
[15] Thishighlighted the fact that the point on which
the review succeeded was not raised in the application papers,
notwithstanding
the fact that the applicant filed both a founding
affidavit and a supplementary founding affidavit after receiving the
record.It
is so, that here and there complaints were made that the
scoring process was subjective and that SANRAL had not stipulated any
objective criteria for the evaluation of quality, but these
complaints did not raise squarely the issue of the adequacy of the
information afforded to tenderers about the more detailed scoring
system to be used in the quality evaluation process. Had it been
raised then some attention might have been paid to the
appropriateness of the relief being sought.
[16] In addition had the point been
raised it would have compelled the Consortium to indicate in what way
it was prejudiced by this
failure. Counsel candidly accepted that
there was not a word in the affidavits explaining how the disclosure
of these details would
have affected the Consortium’s tender.
We were asked to infer prejudice from a hypothetical example drawn
from the allocation
of points in respect of the experience of some
key personnel. However, in the absence of evidence that the
Consortium would have
looked to employ different key people had it
been aware of this allocation, the point remained hypothetical. It
did not establish
that the Consortium suffered prejudice or that the
tender process was flawed in a manner calculated to cause it
prejudice. Absent
special circumstances, prejudice is necessary in
order for the applicant to demonstrate their interest in remedying by
way of judicial
review a fault in a tender process. Otherwise the
court is being asked to deal with an academic issue.
3
As this court said in
Allpay
:
4
‘
It
would be gravely prejudicial to the public interest if the law was to
invalidate public contracts for inconsequential irregularities.’
[17] Leaving these problems aside and
turning to consider the merits of the argument, the premise
underpinning it is flawed. That
premise amounted to this. In order
for the tender process to be fair to all tenderers, SANRAL needed to
disclose in advance, in
the tender documents, full details of every
element of the tender evaluation process that would be undertaken
once tenders were
submitted, including details of the breakdown in
the allocation of the points for quality under the three heads set
out in the
tender documents.
5
The submission was that this was
necessary in order for the process to be transparent and for the
evaluation of the competing tenders
to be objective. Neither
contention can be sustained.
[18] Transparency in a tender process
requires that the tender take place in an environment where it is
subject to public scrutiny.
In other words the tender must be
advertised publicly and its terms be available for public inspection.
Those terms must set out
clearly what must be submitted by those
competing for the award of the contract. The adjudication of the
tender must take place
in an impartial manner and the results made
publicly available. If there is a challenge to the outcome of the
tender there must
be a record that discloses how the process of
adjudication was conducted. In that way the tender process is
transparent and the
public can see that it was conducted fairly.
6
When the Constitution,in s 217,
requires that the procurement of goods and services by organs of
state shall be transparent,
its purpose is to ensure that the tender
process is not abused to favour those who have influence within the
institutions of the
state or those whose interests the relevant
officials and office bearers in organs of state wish to advance. It
requires that public
procurement take place in public view and not by
way of back door deals, the peddling of influence or other forms of
corruption.
But, once a tender is issued and evaluated and a contract
awarded in an open and public fashion, that discharges the
constitutional
requirement of transparency. It is not there to be
used by a disappointed tenderer to find some ground for reversing the
outcome
or commencing the process anew, by claiming that there should
have been greater disclosure of the methodology to be adopted in
evaluating the tenders.
[19] An attempt was made to draw a parallel between a
student writing an examination and needing to know how many marks are
to be
allocated to each answer and the position of the tenderer
needing to know where to concentrate in furnishing the information
required
by the party issuing the tender. But thetwo are not parallel
situations. An examinee is subject to the pressures of time and must
complete a prescribed number of questions within a limited period.
Part of the skill in writing exams is therefore to know what
must be
included and what can safely be omitted in answering a particular
question. Tenders are not prepared under time constraints
and the
tenderer is free to put every possible scrap of potentially useful
information into the tender. The tender can be as detailed
as the
tenderer wishes to make it. If there is a parallel to the academic
situation it is rather with an essay or dissertation
where the
subject matter is identified in advance and the broad parameters
outlined, but the examinee is free to respond as they
see fit and in
as much or as little detail as they choose.
[20] As to objectivity, which is an aspect of the
constitutional requirement that the public procurement process be
fair, it requires
that the evaluation of the tender be undertaken by
means that are explicable and clear and by standards that do not
permit individual
bias and preference to intrude. It does not, and
cannot, mean that in every case the process is purely mechanical.
There will be
tenders where the process is relatively mechanical, for
example, where the price tendered is the only relevant factor and the
competing
prices are capable of ready comparison. The application of
the formula for adjudicating preferences under the PPPFA may provide
another example. However, the evaluation of many tenders is a complex
process involving the consideration and weighing of a number
of
diverse factors. The assessment of the relative importance of these
requires skill, expertise and the exercise of judgment on
the part of
the person or body undertaking the evaluation. That cannot be a
mechanical process. The evaluator must decide how to
weigh each
factor and determine its significance in arriving at an appropriate
decision.
7
Where
that occurs it does not mean that the evaluation is not objective.
Provided the evaluator can identify the relevant criteria
by which
the evaluation was undertaken and the judgment that was made on the
relative importance and weight attached to each, the
process is
objective and the procurement process is fair.
[21] Where the evaluation of a tender requires the
weighing of disparate factors it will frequently be convenient for
the evaluator
to allocate scores or points to the different factors
in accordance with the weight that the evaluator attaches to those
factors.
But the adoption of such a system, without its being
disclosed to tenderers in advance, does not mean that the tender
processis
not objective. If anything the adoption of the scoring
system enhances the objectivity of the process, because, in the event
of
a challenge to the award of the tender, the basis upon which the
evaluation was undertaken emerges clearly.
[22] The prior disclosure of any such points system –
assuming that it was adopted in advance of the evaluation process and
not in the course of that process – is not ordinarily required,
provided that the basic criteria upon which tenders will
be evaluated
are disclosed.
8
That
is what this court held in
Scenematic
in the passage quoted
above in para 11. Provided the tender documents make clear to
participants what is required from them
their task is to submit that
information for evaluation. If they do not do so,or the information
is inadequate when scrutinised,they
run the risk that on that aspect
their tender will fare less well. This is what happened in this case
with two of the experienced
tenderers. One of them gave no details in
respect of its toll plaza manager and was awarded no points under
this head. The other
indicated that its operations manager was
relatively new to the role and received fewer points as a result.
Disclosure of any such
refined process of scoring in relation to a
tender evaluation process will only be required if its non-disclosure
would mislead
tenderers or leave them in the dark as to the
information they should provide in order to satisfy the requirements
of the tender.
There is no evidence that this is the case here.
[23] The position in this case is that all potential
tenderers knew that they would have to achieve 75 points for quality
if their
tenders were not to be excluded at the first stage of
evaluation. They knew what matters they had to address in their
tenders.
The Consortium experienced no difficulties in that regard
because it did not seek clarification from SANRAL or the independent
evaluator in regard to the information that they needed to provide.
It knew that a high priority would be placed on experience because
clause F2.1 of the tender documents said that only tenders from
parties experienced in toll operations and maintenance would be
considered. As it lacked such experience, at least in relation to the
operation of tolls for SANRAL, it needed to present the strongest
possible case in that regard. None of that would have been affected
by knowing in advance that the 45 points for toll operations
would be
divided as to 20 for their organisational structure and 25 for their
proposed operations management. Nor would the disclosure
of the
breakdown of points in other categories or within those categories
have affected matters or altered the terms of their tender
in any
way.
[24] It is no surprise therefore that the Consortium did
not complain in its affidavits about not knowing the detailed
breakdown
in the points allocation, within the three categories
identified in the tender documents. This complaint, raised in
argument and
unsupported by any factual basis, is without merit and
should have been rejected.
[25] After the evaluation report had been made available
the Consortium delivered a supplementary founding affidavit. In
summarising
its contentions the deponent said that the adjudication
report was incorrect in the manner in which it evaluated the
Consortium’s
tender for quality and that if its tender had been
properly evaluated for quality it would have achieved the 75 points
threshold
and should not have been disqualified. The deponent
proceeded to highlight various elements of the quality evaluation and
criticise
the points allocated to the Consortium in respect of these
items. Although disclaiming an intention to engage in an analysis of
the points or to suggest that the Consortium should have scored
better than the ultimately successful tenderer the deponent said
that
he would draw some comparisons ‘to indicate that the points
awarded to the [Consortium] were erroneous’.
[26] Notwithstanding this disclaimer, this was in truth
an invitation to the court to examine the evaluation exercise and
determine
a revised score for the Consortium that would enable it to
cross the quality threshold. Explanations contained in the report, to
the effect that the Consortium lacked relevant toll operation
experience or had not provided information to indicate that they
were
capable of managing and operating this type of contract, were roundly
criticised on two grounds. First it was claimed that
the project was
a small one with limited risk and ideal for the purpose of
introducing a new operator, even though they lacked
experience in
toll operations in comparison with their rivals. Second the
background and experience of the three key individuals
were
highlighted and it was submitted that ‘it is clear that the
quality of the [Consortium’s] personnelexceed that
required for
the management of the Contract’ and accordingly it should have
been allocated a far greater number of points
under this head. Had
that occurred the 75 points threshold would have been surpassed.
[27] The invitation to re-score the Consortium’s
tender for quality must be declined. Once again it must be stressed
that
this is not the function of a court. The task of evaluating and
awarding these tenders rested in the hands of SANRAL, not the court,
and its decision must be respected, provided it was arrived at in
accordance with the constitutional requirements applicable to
public
procurement as set out in s 217 of the Constitution, any
applicable legislation and the terms of the tender. The court
could
only interfere if the process was infected with illegality. The
courtwill not hesitate to interfere with the award of a tender
where
there is impropriety or corruption. However, where the complaints
merely go to the result of the evaluation of the tender
a court will
be reluctant to intervene and substitute its judgment for that of the
evaluator. It may not interfere merely because
the tender could have
been clearer or more explicit. Nor will it interfere because it
disagrees with the assessment of the evaluator
as to the relative
importance of different factors and the weight to be attached to
them. The court is only concerned with the
legality of the tender
process and not with its outcome.
[28] When one analyses the contentions on behalf of the
Consortium they amount to nothing more than a different view of the
merits
of its tender to that taken by the independent evaluator and
the evaluation committee. In regard to the contention that this was
a
relatively small project SANRAL’s approach was that it could
not afford to have a toll road contractor that was unable
to meet the
standards of management and operations that it required. It
accordingly adopted the stance that the first and foremost
consideration in awarding the tender was its assessment of the
capability and capacity of the tenderer to carry out the tender
successfully. That was a different priority to the one identified by
the Consortium, but it cannot be said to be illegitimate.In
regard to
the skills and experience of its key personnel one would expect the
Consortium to sing their praises. However, the evaluators
took a less
sanguine view of them. That was a matter of judgment and it was one
that was open to the evaluators. The court cannot
interfere with that
decision. Overall SANRAL may have adopted an overly cautious
attitude, as the Consortium contends, but that
is not a ground for
review of its decision.
[29] It follows that the application for review should
not have succeeded. Accordingly the following order is made:
1 The appeal succeeds with costs, such costs to include
those consequent upon the employment of two counsel.
2 The order of the court below is set aside and replaced
with the following order:
‘
The application is dismissed
with costs, such costs to include those consequent upon the
employment of two counsel.’
M J D WALLIS
JUSTICE OF APPEAL
Appearances
For appellant: B E LEECH SC (with him A J BOULLE)
Instructed by: Werksmans Inc, Sandton
Symington & De Kok, Bloemfontein
For respondent: P J OLSEN SC (with him V VOORMOLEN)
Instructed by:Cox Yeats Attorneys, Durban
McIntyre & Van der Post, Bloemfontein.
1
Act
5 of 2000. SANRAL was at the time exempted from complying with that
statute, but its procurement policy indicated that it
undertook
procurement in accordance with the spirit of that Act. Accepting
this, it is unnecessary to consider the extent to
which the Act was
in law binding upon SANRAL.
2
Minister
of Environmental Affairs and Tourism & another v Scenematic
Fourteen (Pty) Ltd
[2005] ZASCA 11
;
2005 (6) SA 182
(SCA) para 18.
3
Rajah
& Rajah (Pty) Ltd & others v Ventersdorp Municipality &
others
1961 (4) SA 402
(A) at 407H-408B.
4
Allpay
Consolidated Investment Holdings (Pty) Ltd & others v Chief
Executive Officer, South African Social Security Agency
&others
2013 (4) SA 557 (SCA)para 21.
5
For
the purposes of this judgment I accept that the detailed breakdown
of points in respect of the different sub-headings was
known to
SANRAL when the tender documents were issued, although it is unclear
from the evidence whether this was in fact the
case.
6
The
UNCITRAL Model Law on the Procurement of Goods, Construction and
Services (1994) was adopted by the Commission (the United
Nations
Commission on International Trade Law) in 1994. It has been
influential in the establishment of public procurement regimes
in
many countries and it requires transparency in public procurement.
The principle of transparency is satisfied if the law relating
to
public procurement is available; if tenders are publicly advertised;
if the qualification requirements for tenderers, the
subject matter
of the procurement and the criteria for evaluation are specified; if
information on any modifications of the tender
is available; if
details of the tender awards are published; if there is a right to
be present when tenders are opened; if there
is a record of the
tender process and reasons are given for the acceptance and
rejection of tenders. S P de la Harpe
Public Procurement Law: A
Comparative Analysis
(unpublished LLD thesis in the University
of South Africa, 2009) at 96-114; 424-438 and 583.
7
MEC
for Environmental Affairs and Development Planning v Clairison’s
CC
[2013] ZASCA 82
paras 20-22.
8
The
criteria and procedures that must be disclosed to tenderers under
the UNCITRAL Model Law (Art 6(1)) relate to matters such
as
technical qualifications, legal capacity, solvency, good standing
with the revenue authorities, absence of criminal records
and the
like. De la Harpe,
supra
, 102 fn 36. They do not extend to
disclosure of a scoring system used in the assessment of these
matters.