LDM Consulting v Dube Tradeport & Others (7900/2016) [2021] ZAKZDHC 14 (16 April 2021)

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[2021] ZAKZDHC 14
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LDM Consulting v Dube Tradeport & Others (7900/2016) [2021] ZAKZDHC 14 (16 April 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE NO:
7900/2016
In the matter
between: -
LDM CONSULTING (PTY)
LTD

APPLICANT
and
DUBE TRADEPORT
CORPORATION

FIRST RESPONDENT
AECOM SA (PTY)
LTD

SECOND RESPONDENT
ARUP (PTY)
LTD

THIRD RESPONDENT
ORDER
1.
The application to review and set aside the award of the
tenders by
the First Respondent to the Second and Third Respondents under case
number 7900/2016 is dismissed.
2.
The
Rule Nisi
issued under case number 6301/2016 is
discharged.
3.
The Applicant is directed to pay the costs of the
First Respondent,
such costs to include all reserved costs, the costs of the interdict
application under case number 6301/2016,
and costs consequent upon
the employment of two counsel.
JUDGMENT
Delivered on 16
April 2021
Moodley J s
Introduction
[1]
In 2015 the First
Respondent invited tender bids for two projects to be undertaken
within the Dube Tradeport precinct. In Project
1
[1]
bids were invited for the appointment of a service provider to
undertake Engineering Design, Procurement and
Construction
Management (EPCM) services for a six storey mixed use development.
In Project 2
[2]
bids were invited for the appointment of consultants for the
Engineering Design and Supervision of Construction of a purpose-built

Pharmaceutical Manufacturing Facility. The Applicant tendered
unsuccessfully for both projects which
were
awarded to the Second and Third Respondents respectively. The
Applicant, as part of the Park Consult Consortium, was awarded
a
tender for the construction of a multi-storey parkade (‘the
Parkade Project’) on 3 November 2015.
[2]
In this application, the Applicant, seeks an order:
(a)
reviewing and setting aside (in terms of
s 6(2) of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’)), the
decision of the First Respondent’s
Bid Evaluation Committee
(‘BEC’), Bid Adjudication Committee (‘BAC’)
and the Appeals Authority (‘AA’)
to award Projects 1 and
2 to the Second and Third Respondent respectively;
(b)
setting aside any agreements concluded between
the First Respondent
and the Second and Third Respondents pursuant to the award of the
aforesaid tenders; and
(c)
substituting the Applicant as the successful
tenderer in both
projects.
In the alternative
to (c) above, the Applicant seeks an order directing:
(d)
the First Respondent to re-evaluate and re-adjudicate
the tenders
submitted by the Applicant and the Second and Third Respondents
strictly in accordance with the prescribed criteria
in the tender
document on such terms and conditions as this court may deem
appropriate; alternatively
(e)
directing that the First Respondent commence
the tender process
afresh; and
(f)
for costs against the First Respondent
jointly and severally with any
other Respondent which opposes the application, such order to include
costs of the interim interdict.
[3]
Only the First Respondent opposed the application.
Grounds of Review
[4]
The Applicant’s challenge is to the functionality assessment
in
both Projects 1 and 2. It has advanced the following grounds of
review in respect of Project 1:
(a)
Experience of Key Personnel
During the bid
process, the First Respondent sought clarification from the Applicant
as to how it would deal with the fact that
its key personnel were
committed to other projects with the First Respondent. The Applicant
responded by replacing certain overcommitted
personnel with similar
skilled and experienced resources. However an irregular assessment
was subsequently conducted by the BEC,
it did not assess the
Applicant’s key personnel in accordance with the advertised
criteria but conducted an exercise in comparison
between the old and
the new teams. The Applicant charged that the First Respondent caused
it to change a winning formula, although
there was nothing to
preclude team members being involved in two or more projects.
The tender criteria
did not specify that the more experienced the key personnel were, the
more points would be awarded. It merely
stated that ‘Higher
weighting will be given to consultants with five years or more
experience post professional accreditations
with relevant bodies.’
When the Applicant supplemented the original key personnel with
personnel who had substantially more
than five years’
experience, it ought to have been awarded higher points for key
personnel with more than five years’
experience.
(b)
Green Building Experience
The Applicant was
scored lower in respect of the experience of the key personnel
because the quantity surveyor did not have GBCSA
accreditation. The
tender document did not indicate that the quantity surveyor was
required to have GBCSA accreditation or which
team members must have
GBCSA accreditation, and how the key personnel would be scored
according to the accreditation.
The Applicant has a
quantity surveyor who is GBCSA accredited and is part of the team.
Had it known that more points would have
been given for a GBCSA
accredited
quantity
surveyor, he would have been allocated as the ‘lead’
quantity surveyor for the
project.
It is however unusual to expect a quantity surveyor to have GBCSA
accreditation. Therefore the assessment lacks transparency
and is
arbitrary as it was
improper
for the BAC
[3]
to adversely
score the Applicant on criteria which were not specified in the
tender document.
[5]
The Applicant has advanced the following grounds of review
in respect
of Project 2:
(a)
Bidder’s Experience
The tender document
did not call for medical/pharmaceutical experience. The Applicant was
scored lower for bidder’s experience
because PGA Architects
allegedly had “no medical/pharmaceutical experience”. The
BAC’s comments also suggest
that the Applicant scored less for
bidder’s experience as it had no medical or pharmaceutical
related experience, which is
irrelevant. The Applicant submitted
seven medical/pharmaceutical projects as part of its work history
which demonstrated that the
Applicant has experience in
medical/pharmaceutical projects. Some of these projects were listed
as strengths in respect of the
bidder’s experience. The
Applicant was penalised for not complying with the tender criteria
although it had complied.
(b)
Experience of Key Personnel
The Applicant was
penalised for its key personnel not having the requisite medical or
pharmaceutical experience. However the tender
bid only called for
bidders to provide details of their experience in projects of a
similar scope. Such details were the size,
monetary value and
magnitude of previous projects but there was no reference to medical
or pharmaceutical experience. Despite the
Tender Data not calling for
this specific experience, the key personnel included some medical
projects as part of their experience.
(c)
Methodology and Work Plan
One of the
evaluators, Ms Molly Govender, commented that the Applicant’s
methodology and work plan required clarification.
However, the First
Respondent awarded the tender to the Third Respondent without seeking
the appropriate clarification from the
Applicant. It was procedurally
incorrect to award a tender to the Third Respondent where the BAC
[4]
reasonably required clarification on certain aspects. Had the
applicant been asked to clarify the methodology and work plan
submitted,
the BAC would have awarded the Applicant more points in
this aspect of the functional evaluation.
[6]
The Applicant therefore contends that the functionality assessment
of
the Applicant’s tender in Projects 1 and 2 was irregular and
the award of the tenders to the Second and Third Respondents
is
susceptible to review. It contends further that had the Applicant
been properly assessed, it would have achieved the 70% threshold,
and
because of its superior price and preference points it would have
been the preferred bidder in both tenders.
[7]
The First Respondent contends in response to the aforesaid
averments
about the BEC’s flawed evaluation, that the Applicant’s
bids were properly disqualified at the preliminary
stage of
evaluation because it failed the functionality assessment when it did
not achieve the minimum 70 points out of 100. The
First Respondent
avers that the BEC members evaluated the Applicant’s bid
independently according to the criteria in the
Tender Data and each
evaluator exercised independent judgment on the strengths and
weaknesses of the bid. A collation of the points
each member accorded
Applicant’s bid on the various factors for functionality
indicated that the Applicant’s bid underperformed.
[8]
The First Respondent contends further that an assessment of
the
merits of the BEC’s decisions, as requested by the Applicant,
is not the function of a reviewing court.
In review
proceedings, the Court is not concerned with the correctness of the
BEC/BAC’s decisions, but with the regularity
of the decisions.
The Court should test the impugned decisions against the threshold of
rationality and reasonableness, viz whether
a reasonable authority in
the position of the BEC/BAC would have made the impugned decisions.
The First Respondent avers that the
Applicant’s bids were
excluded on rational and reasonable grounds and in circumstances
where all relevant factors were considered.
It submits that the
Applicant, however, has adopted a flawed and contradictory approach
in this review application which is premised
on factual
misapprehensions, and also that the relief sought is inappropriate.
The First Respondent contends that the Applicant’s
appeals also
failed because of its failure to appreciate the facts and true
reasons as to why it failed to pass the functionality
threshold. It
seeks an order dismissing the application with costs.
Factual Matrix
[9]
It is common cause that:
(a)
the First Respondent, an organ of State,
invited bids for two
projects;
(b)
the Applicant submitted bids for both tenders;
(c)
the Applicant, as part of the Park Consult
Consortium, also submitted
a bid for the Parkade Project at or about the same time that it
submitted the bid in respect of Project
1. The Parkade Project was
awarded to the Park Consult Consortium on 3 November 2015, whilst the
evaluation of bids in relation
to Project 1 was ongoing;
(d)
by letter dated 6 December 2015, Mr Sibusiso
Mkhize (‘Mr
Mkhize’), the Senior Manager: Supply Chain Management
Department of the First Respondent, raised the potential
risk in the
execution of the first project because the Applicant’s proposed
team for the execution of the work was already
committed to other
projects;
(e)
the Applicant responded that it would deploy
new resources and
supplement other resources in its bid;
(f)
by letter dated 23 December 2015,
Mr Mkhize sought clarity from the
Applicant as to which specific members of the team would be replaced,
and what role the proposed
new resources would play;
(g)
on 13 January 2016, the Applicant responded
with details of the
individuals with whom its team would be supplemented in order to meet
the First Respondent’s requirements;
(h)
the BEC had in the interim evaluated the
Applicant and scored it 73%
for Project 1. When advised of the Applicant’s deployment of
new resources, the BEC agreed that
the bid had to be assessed with
reference to the new resources;
(i)
the BEC and Mr Mkhize compiled
a comparative table of the old and new
resources;
(j)
the BEC subsequently evaluated
the Applicant’s bids in
accordance with its new personnel. Five of the six evaluators changed
their scores, which resulted
in a score lower than the previous team
had been awarded;
(k)
the Applicant failed the functionality assessment
having achieved
69.67% in the first project and 67.5% in the second project;
(l)
the BEC’s report on the
evaluation was endorsed by the BAC on
10 February 2016;
(m)
on 18 February 2016, the First Respondent advised the
Applicant that
it had failed to meet the minimum threshold of 70% in the functional
evaluation;
(n)
the Applicant thereafter submitted an appeal
on both tenders to the
AA in terms of the First Respondent’s internal appeal policy on
5 April 2016;
(o)
on 20 June 2016 the AA dismissed both appeals
on the following basis:
-
(i)
it was unable to interfere with the BAC’s decision unless there
was substantial illegality;
(ii)
it should not interfere with the BAC’s discretion to make a
finding by submitting it with a new finding;
(iii)  it would
be improper for it to embark on a remarking exercise;
(p)
the tenders were then awarded to the Second
and Third Respondents
respectively; and
(q)
the Applicant obtained an urgent interim
interdict of both Projects 1
and 2, pending the review application.
The legislative
framework applicable to public procurement and relevant legal
authority
[10]
Section 217
[5]
of the Constitution of the Republic of South Africa, 1996 (‘the
Constitution’), regulates public procurement. In
AllPay
Consolidated Investment Holdings (Pty) Ltd & others v Chief
Executive Officer, South African Social Security Agency &

others
[6]
(‘
AllPay
SCA’
)
Nugent JA succinctly stated that:
‘
[20] The
procurement of goods and services by the state and other public
entities is subject to various legal constraints. Section
217(1) of
the Constitution requires all organs of state, when they contract for
goods or services, to do so “in accordance
with a system which
is fair, equitable, transparent, competitive and cost effective”.
That is taken up in the
Public Finance Management Act 1 of 1999
,
which provides in
s 51(1)(
a
)(iii)
that the accounting authority of a public entity (which includes
SASSA) –
“
(
a
)
must ensure that the public entity has and maintains –
…
(iii)
an appropriate procurement and provisioning system which is fair,
equitable, transparent, competitive
and cost effective;….”
It has also been
held that public procurement constitutes “administrative
action” as contemplated by the Promotion of
Administrative
Justice Act 3 of 2000 (PAJA) and must comply with the provisions of
that Act.’
[11]
Section 217(2) of
the Constitution permits organs of state to implement a preferential
procurement policy, but any pre-qualification
requirement which is
sought
to
be imposed, must advance the provisions of s 217(1) of the
Constitution. Section 217(3) of the Constitution provides for the

enactment of legislation that will prescribe a framework within which
the s 217(2) policy must be implemented. As Ponnan JA explained
in
Airports
Company South Africa SOC Ltd v Imperial Group Ltd & others
:
[7]
‘
[64] The
general rule under s 217 of the Constitution is that all public
procurement must be effected in accordance with a system
that is
fair, equitable, transparent, competitive and cost- effective. The
only exception to that general rule is that envisaged
by s 217(2) and
(3). Section 217(2) allows organs of state to implement preferential
procurement policies, that is, policies that
provide for categories
of preference in the allocation of contracts and the protection and
advancement of people disadvantaged
by unfair discrimination. Express
provision to permit this needed to be included in the Constitution in
order for public procurement
to be an instrument of transformation
and to prevent that from being stultified by appeals to the guarantee
of equality and non-discrimination
in s 9 of the Constitution. The
freedom conferred on organs of state to implement preferential
procurement policies is however
circumscribed by s 217(3), which
states that national legislation must prescribe a framework within
which those preferential procurement
policies must be implemented.
The clear implication therefore is that preferential procurement
policies may only be implemented
within a framework prescribed by
national legislation...’
[12]
The Preferential
Procurement Policy Framework Act 5 of 2000 (‘the PPPFA’)
gives effect to s 217(3) of the Constitution
and provides the
framework for implementation of procurement policy contemplated in s
217(2). The implementation of the PPPFA is
enabled by the
Preferential Procurement Regulations (‘the PPR’).
[8]
The PPR regulates bids based on functionality as a criterion. The PPR
also incorporated the 80/20 and 90/10 preference point system.
[9]
[13]
The Constitutional
Court in
AllPay
Consolidated Investments Holdings (Pty) Ltd
&
others v Chief Executive Officer, South African Social Agency &
others
[10]
(‘
Allpay
CC’
)
stated:
‘
[40]
Compliance with the requirements for a valid tender process, issued
in accordance with the constitutional and legislative procurement

framework, is thus legally required. These requirements are not
merely internal prescripts that [the tender awarding body] may

disregard at whim. To hold otherwise would undermine the demands of
equal treatment, transparency and efficiency under the Constitution.

Once a particular administrative process is prescribed by law, it is
subject to the norms of procedural fairness codified in PAJA.

Deviations from the procedure will be assessed in terms of those
norms of procedural fairness. That does not mean that administrators

may never depart from the system put in place or that deviations will
necessarily result in procedural unfairness. But it does
mean that,
where administrators depart from procedures, the basis for doing so
will have to be reasonable and justifiable, and
the process of change
must be procedurally fair.’ (Footnotes omitted.)
[14]
In
South
African National Roads Agency Ltd v Toll Collect Consortium
[11]
Wallis
JA held that:
[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.
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.
…
[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. 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. (Footnotes
omitted.)
[15]
In procurement
documents functionality means ‘the measurement according to
predetermined norms,
as set out in the bid documents, of a service or commodity that
is designed to be
practical and useful, working or operating, taking into account,
among other factors, the quality, reliability,
viability and
durability of a service and technical capacity and ability of a
Bidder.’
[12]
It is
therefore the means of assessing the
substantive
quality of the goods or services which are meant to be procured
through the PPPFA. This assessment takes place after
the minimum
requirements for viability
are
met (stage 1 of the evaluation of the tender bid) and before price
and preference points are determined according to a prescribed

formula (stage 3).
[16]
The functionality of services is assessed through objective,
predetermined
measurement criterion:
(a)
the evaluation criteria for measuring functionality;
(b)
the points for each criteria and, if any,
each sub-criterion; and
(c)
the minimum qualifying score for functionality.
Therefore the tender
documents must set out the evaluation criteria with clarity. The
Constitutional Court in
Allpay CC
determined that:
‘
[92] The
purpose of a tender is not to reward bidders who are clever enough to
decipher unclear directions. It is to elicit the
best solution
through a process that is fair, equitable, transparent,
cost-effective and competitive.’ (Footnote omitted.)
[17]
Procurement disputes
generally involve the application of s 217 of the Constitution, which
raises constitutional matters.
[13]
Where an organ of state acts contrary to the prescripts of s 217, the
High Court is empowered under PAJA to review
such
administrative action and to grant orders which are just and
equitable in the circumstances.
[14]
The precept was confirmed by the Constitutional Court in
AllPay
CC
.
[15]
Supply Chain
Management Guidelines
[18]
The BEC and BAC are established in terms of the SCM guidelines.
The
BEC’s role is to evaluate bids received in accordance with
specifications and the points system (PPR). In addition, the
BEC
must, inter alia, assess each bidder’s ability to execute the
contract, and submit a report with recommendations regarding
the
awarding of the bid or any other related matter to the BAC.
[19]
The BAC must consider the recommendations and reports from the BEC

and ensure inter alia that:
(a)
Disqualifications are justified and valid
and accountable
reasons/motivations were furnished for passing over of bids;
(b)
Scoring has been fair, consistent and correctly
calculated and
applied.
Then, depending on
the official written delegations, the BAC must make the final award
or make a recommendation to the Accounting
Officer to make the final
award or on how to proceed with the relevant procurement.
The First
Respondent’s Tender Criteria and Evaluation process
[20]
It is common cause that the project details and the criteria upon

which the bids for Projects 1 and 2 would be evaluated for
functionality were detailed in the tender documents. The weight and

values each sub-criterion would carry were stipulated as  follows:
i.
Bidders’ Experience - 25%
ii.
Experience of Key Personnel – 25%
iii.
Methodology and Work plan – 25%
iv.
Programme – 15%
v.
Location – 10%
Total
100%
[21]
Each criterion was further elaborated upon in the tender document

with an explanation of the points allocated for scoring on
functionality. The Tender Data also specified that a bidder would
only
be eligible to submit a proposal if the Built Environment
Professionals are registered with their respective council and if in
the opinion of the First Respondent ‘the bidder can demonstrate
that it possesses the necessary professional and technical

qualifications, professional and technical competence, financial
resources, equipment and other physical facilities, managerial

capability, reliability, experience and reputation, expertise and
personnel to perform the project as per functional evaluation

criteria prescribed in this document.’ The Tender Data recorded
further that any bidder who failed to comply with any of
the above
would be deemed non-compliant.
[22]
It is not in dispute that the following procedure was followed by
the
First Respondent/ BEC when weighing the original bids for
functionality:
(a)
Each individual evaluator noted his/her comments
on each aspect of
the weighting factors constituting of the functionality criteria and
independently scored each bid received in
manuscript by indicating
the score between 0-5 he/she deemed appropriate.
(b)
The scores by and individual comments by
each evaluator were
submitted to Mr Mkhize for purposes of collation and condensation
into one document.
(c)
The manuscript notes and scores accorded
by individual evaluators
were also extrapolated into a spreadsheet. The accorded points were
calculated from the scores using a
formula indicated in the Tender
Data to derive the baseline/final functionality points achieved by a
particular bid.
(d)
Manuscript comments made by each individual
evaluator were
extrapolated from the evaluation sheet into a single typed document,
except that repetitive comments were omitted.
The document formed
part of the BEC’s report to the BAC.
(e)
It is the convention and established practice
of the BEC that the
scores accorded by each member/evaluator are not debated and/or
discussed unless, upon collation, there appears
to be a disparity of
more than two points between the members. If the disparity is
marginal (two points or less) the scores are
left intact and
transposed into a spreadsheet for calculation in order to determine
whether the bid exceeds the 70 points threshold
for functionality.
[23]
In this case the evaluation of functionality of the Applicant’s

replaced resources in Project 1 took place after the initial
resources were scored. The BEC considered a comparison table of the

old and new resources and then scored the new resources. The report
to the BAC included the evaluation of the replaced resources.
Resolving the
dispute
[24]
The Constitutional Court has provided the following guidance for

review applications in
AllPay CC
:
‘
[44] …
In challenging the validity of administrative action an aggrieved
party may rely on any number of alleged irregularities
in the
administrative process. These alleged irregularities are presented as
evidence to establish that any one or more of the
grounds of review
under PAJA may exist. The judicial task is to assess whether this
evidence justifies the conclusion that any
one or more of the review
grounds do in fact exist.
…
(f)
Approach to remedy
[56]  Once a
finding of invalidity under PAJA review grounds is made, the affected
decision or conduct must be declared unlawful
and a just and
equitable order must be made. It is at this stage that the possible
inevitability of a similar outcome, if the decision
is retaken, may
be one of the factors that will have to be considered. Any contract
that flows from the constitutional and statutory
procurement
framework is concluded not on the state entity's behalf, but on the
public's behalf. The interests of those most closely
associated with
the benefits of that contract must be given due weight. The rights or
expectations of an unsuccessful bidder will
have to be assessed in
that context.
Application of
law to the facts
[57]  In
accordance with the approach set out above it is now necessary to
consider whether the evidence on record establishes
the factual
existence of any irregularities and, if so, whether the materiality
of the irregularities justifies the legal conclusion
that any of the
grounds for review under PAJA exist.
[58]  The
materiality of irregularities is determined primarily by assessing
whether the purposes the tender requirements serve
have been
substantively achieved…This important overall purpose of the
request for proposals must be kept in mind when assessing
whether any
non- compliance with its particular provisions was material.’
[25]
This court must therefore determine whether the Applicant’s
bid
for Project 1 and Project 2 were assessed and evaluated in accordance
with the prescriptive requirements of s 217 of the Constitution,
the
PPPFA and the PPR, and whether there is factual proof that the
conduct of the evaluators in the BEC and BAC in assessing the

Applicant’s tender bids constituted reviewable administrative
action under s 6(2) of PAJA. The averments by the parties and
the
argument advanced by their respective counsel in respect of each
project are dealt with under separate headings.
Project 1
The Applicant’s
averments
[26]
It is common cause that when the Applicant’s bid was to be

evaluated on functionality, the First Respondent sought clarification
about the Applicant’s resources. The Applicant avers
that the
First Respondent queried which specific members of the team would be
replaced and what role the proposed new resources
would play. This
query caused the Applicant to believe that the First Respondent
required the Applicant to replace its personnel.
Consequently on 13
January 2016, the Applicant responded with details of the individuals
with whom its team would be supplemented
in order to meet the First
Respondent’s requirements, but its team structure remained
unchanged. However the BEC evaluated
the Applicant’s new
resources by comparing them with the old resources, instead of
evaluating them according to the functionality
criteria, and scored
the new team lower at 69.67% than it had the first. As a result of
this irregular procedure, the Applicant
failed to meet the minimum
threshold of 70% in the functional evaluation.
[27]
The Applicant persists with the view that the First Respondent failed

to justify the reasons for the BEC’s scoring. The transcribed
comments reveal that the Applicant failed to meet the minimum

threshold because:
(a)
none of the consultants have a track record
of “green star”
buildings;
(b)
the work plan and methodology did not include
project relevant
aspects but were generic;
(c)
the applicant failed to demonstrate that
a sufficient number of its
professional team members were registered with the GBCSA;
(d)
the programme had tight design timelines;
(e)
the replacements submitted as a result of
the key consultants’
commitment in other projects were not equivalent to the original
team.
[28]
The Applicant contends that:
(a)
nothing in the tender suggested that additional
points would be
awarded if professional members of the team had more than five years’
experience. Five years’ experience
was seen as the threshold
for achieving maximum points;
(b)
the tender documents did not state that a
particular number of a
bidder’s team needed to be GBSCA accredited nor did it give any
particularity of which members of
the team should be accredited;
(c)
nowhere in the tender criteria was it recorded
that bidders were
obliged to set out “green building” experience at all,
nor was it recorded that higher points would
be awarded if the bidder
demonstrated the number of “green building” projects
carried out; the Applicant had however
submitted its “green
building” experience in its tender documentation;
(d)
the programme timeline was based on the time
frames provided by the
First Respondent.
[29]
The Applicant contends further that had it scored only 0,36% more
on
the technical evaluation, it would have proceeded to stage 3, and its
bid would then have been scored on price and preference
point
components and it would have secured the tender. The Applicant
further submits that the AA erred in the application of the
First
Respondent’s internal appeal policy which clearly provides in
clause 2 that the grounds for appeal includes instances
where the BAC
has committed a gross irregularity or where a bid has been awarded in
an improper manner.
[30]
The Applicant finally avers that as the decisions of the First
Respondent’s BEC, BAC and AA were based on criteria that were
not part of the tender invitation, the decisions are irregular,

unprocedural and wrong. Further, the individual evaluators made
decisions that were either not rationally connected to the material

before them, or based on irrelevant criteria. They failed to seek
clarity on matters of importance when they (not the Applicant)
failed
to understand matters of relevance. The BAC in particular unlawfully
or wrongfully caused the Applicant, which had already
scored 70%, to
supplement its team and then held that against the Applicant. The
Applicant therefor contends that it is entitled
to relief under s
6(2) of PAJA.
The First
Respondent’s responses
[31]
The First Respondent contends that the Applicant’s challenge
to
Project 1 is misguided because it is based on incorrect assumptions.
The first is that the First Respondent’s evaluating
team
deliberately solicited the replacement of key personnel. The First
Respondent has explained how the replacement of personnel
arose as a
result of a routine request for clarification by Mr Mkhize. The
request by the SCM Department had been precipitated
by an intervening
event, which was at that time unknown to the evaluating team. The
applicant had been awarded another tender by
the First Respondent,
i.e. for provision of Engineering and Project Management Services in
respect of the Parkade Project.
[32]
The Applicant’s second incorrect assumption is that the BEC
was
aware that its team with the original resources was a winning
formula. The First Respondent points out that on 7 December 2015,

long before the finalisation of its bid evaluation, the Applicant
acknowledged that it had duplicated its resources because some
of its
critical team members deployed for the execution of Project 1 were
also part of the Parkade Project. When the Applicant
became aware
that the Parkade Project had been awarded to the Park Consortium of
which it is a member, the Applicant augmented
its bid by replacing
the original team with new team members. Consequently, the
Applicant’s bid had to be evaluated on the
basis that its
original team (deployed for Project 1) was no longer available.
[33]
It was only thereafter, at the BEC meeting of 17 December 2015 that

the scores of the evaluators were collated and totalled. Although the
Applicant attained 73 points for functionality, it had already

acknowledged that some of its resources were duplicated in the
Parkade Project. Therefore the BEC acknowledged the risk to the

capacity of the Applicant to execute Project 1 and decided that it
would have to re- evaluate the Applicant’s bid. In the
interim
Mr Mkhize sought further clarification from the Applicant, which
elicited the details of the replacement resources on 13
January 2016.
He also obtained confirmation from National Treasury, that the
replaced resources could be evaluated on functionality.
[34]
At the reconvened meeting of the BEC scheduled for purposes of
assessing the effect of the proposed changes by the Applicant to its
original resources, BEC members agreed that the proposed resources

were not equivalent to the originally proposed resources. They tasked
Mr Mkhize to analyse and compare the proposed changes, which
he duly
did and circulated to the BEC. The BEC members themselves also
compared the original resources with the proposed replacements,
and
then assessed the new team. Of the six evaluators, five changed their
scores. Each evaluator provided reasons for the new score.
The new
team was therefore properly assessed at a lower score, especially its
score for ‘Experience of Key Personnel’.
[35]
The First Respondent denies that the Applicant was singularly
targeted
to provide information to be used to penalise its bid,
because the same request for clarification for the very same reasons
was
made to similarly placed tenderers, viz AECOM and DELTA. In
respect of the complaint that the First Respondent did not specify
what points would be awarded for experience above five years, the
First Respondent points out that the minimum experience (of five

years) was set out in the tender criteria; and there is no legal
requirement for the First Respondent to disclose with greater

specificity how experience in excess of five years would be weighed
or scored. The First Respondent avers that the challenge premised
on
the “Green Building Experience” is also misplaced: the
Applicant attained a low score not because its quantity surveyor
did
not have the GBCSA accreditation but mainly because its replaced
architect lacked sufficient GBCSA accreditation experience.
Argument
[36]
Mr
Pillay
who
represented the Applicant herein, submitted that because public
tenders are
notoriously prone to manipulation they must be assessed with a higher
degree of certainty and transparency.
[16]
He argued that the scope for manipulation of a tender lies in the
functionality assessment, and that consequently the functionality

criteria must be explicitly set out, met and evaluated with certainty
and transparency.
[17]
If these basic
tenets of functionality are not met, the process would offend against
the
requirements
of s 217 of Constitution
,
the
PPPFA and the PPR. He emphasised that a prospective bidder must be
able to ascertain what is required from the tender and the
criteria
for the assessment must be fully disclosed to allow an interested
bidder to
achieve
the pre-determined score. The purpose of a tender is not to award
bidders who are clever enough to decipher unclear directions.
[18]
[37]
Mr
Pillay
referred
to
Sizabonke
Civils CC t/a Pilcon Projects v Zululand District
Municipality &
others
[19]
which determined
that the role of functionality as a qualification
criterion and not an
award criterion. The judgment precipitated the 2011 PPR.
[20]
He pointed out that by virtue of the judgment in
Sizabonke,
organs
of state must adopt a two stage approach to tender adjudication in
procurement where functionality forms part of the tender

specifications. The definition of functionality postulates two main
elements, namely the quality of the services procured i.e.
the
substantive characteristics of the subject matter of the procurement,
and the characteristics of the
tenderer
to the extent that those relate to the subject matter of the
procurement. Mr
Pillay
argued
that the characteristics of the supplier of the goods or services are
therefore relevant in this context only to the extent
that they
impact on the substantive
quality
of the goods or services. In other words characteristics of the
tenderer that do
not
directly impact on the actual substantive quality of the services
procured in the particular contract are irrelevant for the
purposes
of determining functionality.
[21]
[38]
Mr
Pillay
argued
further that there is no room for departure from the evaluation
criteria in the
tender invitation, which with the constitutional and legislative
procurement provisions, constitute the legally
binding framework
within which tenders
have
to be submitted, evaluated and awarded.
[22]
He provided as authority
BKS
Consortium v Mayor, Buffalo City Metropolitan Municipality &
others
[23]
in which the court
confirmed that bids can only be assessed for functionality on
criteria strictly set out in the tender documents
and not on criteria
that are not so indicated. Mr
Pillay
submitted
that because functionality determines the tenderer’s ability to
do the job and effectively serves a gatekeeper function,
there must
also be clarity on how prospective
tenderers
can get through the gate.
[39]
Mr
Pillay
submitted
that the reliance by the First Respondent on the judgment in
Toll
Collect
in
which Wallis JA held that public contracts should not be invalidated
for inconsequential irregularities, is ill-conceived. He
clarified
that reliance in
Toll
Collect
on
the
AllPay
SCA
judgment
could not be sustained because that judgment is
at
odds with the
AllPay
CC
judgment
and pre-dates the 2011 PPR. It therefore does not reflect current
procurement jurisprudence. He argued that in
Westinghouse
Electric Belgium SA v Eskom Holdings (Soc) Ltd & another
[24]
the SCA finally
determined that a contracting authority may not rely on criteria
other than those expressly communicated to the
bidders in the tender
documents. The Court held at paragraph 50 that “if any of the
considerations that caused the BTC to
award the tender … is
outside the parameters of the bid criteria the decision is bad in
law”. The
SCA
concluded that because irrelevant considerations were taken into
account the award decision was reviewable in terms of s 6(2)(e)(iii)

of PAJA.
[40]
Mr
Pillay
submitted
that because price is central to preferential procurement,
[25]
functionality is
used to obtain the cheapest price from all the parties which meet the
minimum qualifying criteria. A tenderer must
therefore be told
expressly how to achieve the pre-determined scoring.
[26]
Therefore, on the reasoning in
BKS
and
Westinghouse,
the
First Respondent could not in its evaluation penalise the Applicant
utilising criteria
that were not stipulated or called for.
[41]
Mr
Pillay
contended that the First Respondent nevertheless
caused the Applicant to replace certain key personnel, although the
tender did
not stipulate that personnel could not serve on more than
one project. He argued that as key personnel such as engineers,
architects
and quantity surveyors in big consortiums often work on
more than one project, the rationale of the First Respondent was
defective.
Further the BEC did not evaluate the new personnel
according to the evaluation criteria in the tender. Instead the BEC
compared
the new personnel to their predecessors and, where their
experience was even marginally less, they were penalised. All but one
of the evaluators reduced scores, which was both at odds with the
assessment criteria set out in the tender and unfair.
[42]
Mr
Pillay
submitted
that on that basis alone the tender evaluation is irregular, and once
there is irregularity it must be set aside, as per
the decision in
Allpay
CC
.
[27]
He pointed out there were however other deficiencies in the
evaluation in Project 1. The BEC determined a weakness because the

Applicant’s quantity surveyor was not GBCSA accredited. Further
the Applicant’s key personnel were penalised for not
having
disclosed green star accredited building experience although this was
not a stipulated criterion in the tender document
and there was
nevertheless evidence of such experience in the Applicant’s
bid. Mr
Pillay
concluded
with the argument that the
conduct
of the BEC constituted invalid administrative conduct, and that there
is a constitutional obligation on the First Respondent
not to seek to
uphold such conduct. He also proposed that the appropriate order
would be the alternate relief sought.
[43]
Mr
Madonsela SC
who appeared with Ms
Mahabeer,
responded
that Mr
Pillay
had in argument substantially expounded what is
in fact a trite principle: the criteria for assessing ‘functionality’

must be set out in the tender documents. The principle that that
tenders must be assessed on specified criteria was settled law
and
only regularised by the promulgation of the 2011 PPR.
[44]
He pointed out that
the First Respondent’s averments detailing five components
in the tender
documents for assessing ‘functionality’ were not disputed
by the Applicant. That the evaluation of the
Applicant’s bid
was made on these identified components of ‘functionality’
criteria specified in the bid documents
is evident from the
‘
evaluation
sheets’,
[28]
the
BEC
Minutes,
[29]
and evaluators’
comments.
[30]
Mr
Madonsela
submitted
that
Toll
Collect
[31]
was decided on the
premise that:
‘
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.’
It was therefore
relevant to this case. He contended that what Wallis JA
authoritatively rejected in
Toll Collect
was the contention
that the tender documents must provide the breakdown of the already
broken-down points for ‘functionality’:
‘
[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… 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…
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.’ (Footnote
omitted.)
He pointed out that
contrary to the Applicant’s assertion that it was no longer
reliable authority,
Toll
Collect
has
been followed in
Cape
Town City v South African National Roads Agency Ltd & others
[32]
and is binding.
[33]
[45]
Mr
Madonsela
contended
further that although the Applicant complained that the First
Respondent had called for clarification in Project 1 and
had failed
to call for clarification in Project 2, the First Respondent has a
duty to call for clarification during
evaluation
of tenders when it is fair to do so, and the clarification could not
be ignored.
In
Metro
Projects CC & another v Klerksdorp Local Municipality &
others
,
[34]
Conradie JA delineated the duty as follows:
‘
[13] …It
may in given circumstances be fair to ask a tenderer to explain an
ambiguity in its tender; it may be fair to allow
a tenderer to
correct an obvious mistake; it may, particularly in a complex tender,
be fair to ask for clarification or details
required for its proper
evaluation. Whatever is done may not cause the process to lose the
attribute of fairness or, in the local
government sphere, the
attributes of transparency, competitiveness and cost-effectiveness.’
[46]
Mr
Madonsela
argued that Applicant was not penalised for
having personnel in two of the First Respondent’s projects. It
misinterpreted
the request for clarification which could not be
attributed to the First Respondent. The Applicant acknowledged that
its (original)
resources were duplicated and proposed to replace and
re-adjust the deployment of its resources. It would have been
improper to
evaluate and adjudicate the tender on the wrong factual
footing.
[47]
Mr
Madonsela
pointed
out that although the Applicant initially contended that the
requirement that the team must include GBCSA approved professionals

was not a specified tender criterion (and claimed that its bid was
disqualified using that criterion), it did accept in its replying

affidavit that the tender rules made green building
experience/accreditation
a requirement. The Applicant persists with its subsidiary argument
that the tender documents did not require
a quantity surveyor to be
GBSCSA
approved.
Mr
Madonsela
submitted
that this, however, was not why the Applicant’s bid failed. The
Applicant scored lower because the evaluators assessed
its replaced
resources
[35]
to be weak.
Specifically, the Applicant’s replaced lead architect did not
have sufficient green building experience.
[48]
Mr
Madonsela
contended
further that the criticism that the BEC’s comparison of old and
replaced personnel departed from the criterion was
ill-conceived. The
point
of
the comparison (which the BEC itself discussed) was an exercise to
help BEC members to ascertain if their previous score on the

criterion of ‘Key Personnel’ should
remain
the same. All but one evaluator reconsidered their scores and reduced
them in accordance with their judgment.
[36]
The First Respondent had also demonstrated fully
in
its answering affidavit that the Applicant was not singularly
targeted when clarifications were sought. It was integral to the

routine risk management process to address changes caused by the
award of the Parkade Project in the intervening period, and any
risks
(perceived or real) which could result from duplication of resources
deployed by the Applicant to both tenders.
[49]
Mr
Madonsela
emphasised that when the clarifications were
sought and provided on 7 and 8 December 2015, the BEC was not aware
that the Applicant’s
bid had passed the functionality threshold
because the evaluators’ scores were only tallied and totalled
on 17 December 2017.
Mr
Madonsela
contended that the relief
sought by the Applicant in respect of Project 1 was consequently
without merit. Not only did it failed
to establish that the First
Respondent deliberately misled it when seeking clarification, but it
also failed to objectively identify:
’
29.1
Where in any of the functionality weighting factors the BEC
underscored the LDM’s bid and why;
29.2
By how many more points applicant should have been scored and why;
29.3
Who amongst the evaluators should have awarded it more points and
why.’
Therefore as the
Applicant has failed to establish that any reviewable irregularities
in the evaluation of its bid for Project 1,
the application for
review falls to be dismissed with costs. However should the Applicant
succeed, Mr
Madonsela
proposed that the matter should be
remitted to the First Respondent for reconsideration.
Discussion
[50]
It is apparent from the legislative framework set out earlier in
this
judgment as well as the judicial principles propounded by the
Constitutional Court in
AllPay CC
and the cases relied on by
both counsel, that the invitation to tender by an organ of state as
well as the evaluation of the tender
bids must be consistent with
constitutional and legislative imperatives. Firstly the content of
tender documents issued by organs
of state inviting bids,
specifically the Tender Data and the criteria specified therein, must
be clear as to the project to be
undertaken and the services required
for the timeous, cost-effective and proper completion of the project.
[51]
Although Mr
Pillay
resisted the relevance of
Toll Collect,
I am not persuaded that the comments of Wallis JA in that
judgment have no relevance whatsoever within current jurisprudence
relating
to procurement by organs of state. Wallis JA confirmed that
tender documents must disclose the basic criteria upon which tenders

will be evaluated and make clear to participants what is required
from them. Therefore although the basic criteria under the PPR
may
not be what Wallis JA contemplated in
Toll Collect
, his
comments remain relevant as he confirms that the responsibility to
submit the requisite information for evaluation is that
of the
bidder. Mandatory clarification briefings are also held for the
benefit of the bidders during the procurement process. It
is again
the responsibility of the bidders to utilise these briefing sessions
to facilitate the resolution of any problems they
have with the scope
of the tender or the requirements for the project or the evaluation
criteria. If a bidder fails to obtain clarity
and his bid falls
short, he should not complain later that his bid suffered failure
because of shortcomings in the tender document.
[52]
Secondly the
evaluations at all stages must be carried out according to the
stipulated criteria in an objective, transparent and
fair manner. In
Tetra
Mobile Radio (Pty) Ltd v MEC, Department of Works & others
[37]
the SCA held:
‘
[9]
…[F]airness is inherent in the tender procedure. Its very
essence is to ensure that, before government, national or provincial,

purchases goods or services, or enters into contracts for the
procurement thereof, a proper evaluation is done of what is available

and at what price, so as to ensure cost-effectiveness and
competitiveness. Fairness, transparency and the other facts mentioned

in s 217 [of the Constitution] permeate the procedure for awarding or
refusing tenders.’
[53]
Should the process
be unfair or irregular, then the tender or the award thereof may be
susceptible to review. Therefore where an
administrative body takes
into account considerations that are extraneous to the tender
evaluation criteria, as set out
in
the invitation to bid, its decision to make the award is unlawful and
procedurally unfair.
[38]
However it is also important to be mindful that the process may not
be flawless. In
Allpay
SCA
[39]
the court held:
‘
There will be
few cases of any moment in which flaws in the process of public
procurement cannot be found, particularly where it
is scrutinised
intensely with the objective of doing so. But a fair process does not
demand perfection and not every flaw is fatal.’
Lewis JA in
Westinghouse
v Eskom Holdings
[40]
pointed out that:
‘…
It
is, of course, only immaterial flaws (termed “inconsequential”
by that court) that may be overlooked. The judgment
in
Allpay
SCA
was
reversed on appeal to the Constitutional Court… but, as I
understand it, that principle was not attacked.’
[54]
The Constitutional
Court however warned against a dismissive attitude towards
inconsequential
irregularities in
AllPay
CC
[41]
and set out the
proper legal approach as follows:
‘
[22]
This judgment holds that:
(a)
The suggestion that “inconsequential irregularities”
are
of no moment conflates the test for irregularities and their import;
hence an assessment of the fairness and lawfulness of
the procurement
process must be independent of the outcome of the tender process.
(b)
The materiality of compliance with legal requirements depends
on the
extent to which the purpose of the requirements is attained.
(c)
The constitutional and legislative procurement framework entails

supply chain management prescripts that are legally binding.
(d)
The fairness and lawfulness of the procurement process must
be
assessed in terms of the provisions of the
Promotion of
Administrative Justice Act “(PAJA
”).
(e)
…
(f)
The remedy stage is where appropriate consideration must
be given to
the public interest in the consequences of setting the procurement
process aside.’ (Footnote omitted.)
Did the First
Respondent cause the Applicant to replace its key personnel?
[55]
In the evaluation clarification letter dated 6 December 2015 Mr

Mkhize advised:
‘…
during
the evaluation it has been identified that your proposed team for the
execution of the work is already committed to other
current projects
and /or current tenders at Dube TradePort Corporation.
This
may
pose
a risk to the execution of the proposed project should you are (be?)
eventually recommended. Kindly advise
how are you planning to
address this and mitigate this risk
should you be awarded this
contract?’ (Emphasis added.)
[56]
In its response dated 7 December 2015, the Applicant acknowledged

that there were some duplications in the tender submission for
Project 1 because it was unaware of the preferred status provider

status of the tender submitted by Park Consult Consortium. It then
advised as follows:
‘
Accordingly,
in mitigation of the potential risk of duplication of resources
should this project be awarded to LDM Consulting (Pty)
Ltd, the
strategies that shall be implemented includes, inter alia, the
following:
·
In general, the resources concerned
shall be replaced and/or
supplemented
with other appropriately skilled and qualified
resources to undertake the various tasks.
·
The Lead Project Manager
shall be replaced
…
·
The architectural team
has already been supplemented
…
·
The quantity surveying team
shall be replaced
…
·
The Resident Engineer, which is the only full time requirement on
this project,
shall be
replaced.
·
All other duplicated personnel
shall
be
either
replaced
or
supplemented
with other resources.
Further, we advise
that on analysis of the program timelines and resource demands, it
appears that some resources will be able to
allocate time on both
projects.’ (Emphasis added.)
[57]
Mr Mkhize thereafter dispatched a letter dated 23 December 2015

requesting further clarification. In respect of the Applicant’s
statement that ‘resources concerned shall be replaced
and/or
supplemented with other appropriately skilled and qualified resources
to undertake the various tasks, Mr Mkhize responded:
‘
Kindly
indicate which resources would you wish to propose for replacement?
What would be the roles of those proposed resources?
If the replacement
resources do not form part of the list of resources that was
submitted in the original proposal, kindly provide
detailed
information (of?) such resources (ie their qualifications, CVs,
summary of work experience) for review, by DTPC.
It should be noted
that this request for information on the replacement resources does
not inevitably imply that the said resources
will be accepted as
replacements to the resources submitted in the original proposal.’
[58]
The First Respondent also requested documentation: a man-hours plan

or schedule for Project 1 using the original resources and another
such schedule using the replacement personnel where applicable;
and a
well-defined methodology, with a comparative summary, indicating how
the Applicant proposed to allocate resources and administer
related
activities for two projects because the proposed timelines for both
projects were analogous. Mr Mkhize advised further
that in order to
complete the Applicant’s proposal evaluation, the First
Respondent needed to assess how the Applicant would
properly manage
and synergize the two projects should it be awarded both the Parkade
Project and Project 1. In response thereto
the Applicant submitted a
letter dated 13 January 2016 marked ‘without prejudice’,
setting out in detail the ‘Replacement
Resources’ and
their curriculum vitae and the other requested documentation.
[59]
It is not in dispute that the First Respondent is entitled to seek

clarification in respect of tender bids and did not act outside its
empowering provisions in doing so. Further the First Respondent
has
explained that the SCM Department ordinarily undertakes a routine
risk management process through which any overlap or duplication
of
resources between current projects and new proposals is detected.
This process identified the Applicant’s potential involvement

in two parallel projects and motivated Mr Mkhize’s letter dated
6 December 2015. Similar letters were dispatched to the Second

Respondent and a third tenderer. There is no basis to conclude that
the clarification was sought for an ulterior purpose or motive.
[60]
Further, contrary to the assertion by the Applicant, I am unable
to
find that there was any undue pressure or coercion on the Applicant
to replace its team by the First Respondent in both Mr Mkhize’s

requests for clarification. I am in agreement with Mr
Madonsela
that the First Respondent was correct in seeking clarification in
respect of the resources to be deployed by the Applicant as the
two
projects were to be analogous and potentially this sharing of
resources may have impacted adversely on the time line of the

projects and its cost effectiveness.
[61]
There is also no reason to conclude that the First Respondent
intended
to singularly target the Applicant to its detriment, or was
biased against the Applicant. In the minutes of the BEC meeting held

on 15 February 2016 to discuss the evaluation of the Applicant’s
bid, committee member Ms D Sukdeo placed on record that
‘she
had made edits to the letter sent to the bidders (LSG) because she
wanted them to understand when receiving the letter
that they did not
want them to change the resources but they required an explanation
that the proposed resources will be able to
handle both projects…the
new resources will be included for assistance.’
[62]
It was the Applicant
who saw fit to replace eight of its key personnel resources
[42]
as set out in its
letter dated 13 January 2016, although it initially acknowledged that
only
some
of
its resources in the bid for Project 1 were deployed in the Parkade
Project
and
that three personnel would be replaced. It was a strategic decision
taken by the Applicant and the responsibility therefor is
its own,
and not that of the First Respondent. This finding is consistent with
Wallis JA’s comments in
Toll
Collect
.
It also cannot be contentious that following on the replacements made
by the Applicant, the functionality of the new resources
had to be
evaluated, for which reason their details were requested. I am not
satisfied that there is factual basis for the Applicant’s
allegation that it
was unduly and prejudicially pressured or ‘caused’ by the
First Respondent to change its ‘winning
team.’ I am also
unable to find any merit in the Applicant’s averment that ‘the
BAC in particular unlawfully
or wrongfully caused the Applicant,
which had already scored seventy percent (70%), to supplement its
team and then held that against
the Applicant.’
Were the Applicant’s
new resources assessed irregularly?
[63]
The factual matrix
relevant to this issue is constituted by the requirements for
‘Experience of Key Personnel’ and its
score of 25% as set
out in the Tender Data, the
comparison
table, the scoring and comments of the BEC in its evaluations,
[43]
meetings
and
its report to the BAC. It is common cause that before the BEC
assessed the Applicant’s new team, the members of the BEC
and
Mr Mkhize drew up a comparison
table
of the old and new resources, which is the focal point of contention
between the
parties.
The Applicant objects to the assessment because it contends that the
BEC carried out a comparative exercise only and did
not assess the
new key personnel in terms of the functionality criteria. The First
Respondent disputes this contention, and
contends
that the BEC conducted the evaluation of the new team with the due
and proper exercise of its discretion although the comparison
of
resources was utilised in the evaluation of the new resources. It is
also relevant to note that the Applicant had no complaint
about the
lack of specificity in the criteria set out in the Tender Data during
the briefing meetings or when the functionality
of its original
resources was assessed.
[64]
The summary of the assessment for the criterion ‘experience
of
key personnel’ records:
‘
Strengths
:
·
The professional team have adequate qualifications and relevant
experience of projects
of similar size.
·
Three members of the team are GBCSA accredited.
Weaknesses
:
·
None of the consultants have a track record of green star buildings
shown in the CVs.
·
QS does not have GBCSA accreditation.’
[65]
The summary is consistent with the comments of the evaluators in
the
comments sheets on the original team. The adverse impact of the
functionality re- assessment on the Applicant’s bid is
that
three of the evaluators dropped the Applicant’s score by 1/25
and one evaluator by 2/50 points in the re-assessment.
The motivation
and basis for the rescoring is provided in the minutes of the BEC
meeting of 15 February 2016, which reflects the
following discussion:
‘…
DP
asked the members if they all agree that if they departing from what
they scored, then they need to effectively be given an opportunity
to
review the scores.
…
. now
they
need to look at everybody’s CV
DP called SM (SCM
manager) that they received a reply letter from LDM and now
they
require
a direction since a lot of the resources has been
replace
…. His concerned is that they are replacing the
resources with a B team and it is a shared concern with the members
currently
present. He then asked if they are not happy with this
package and it is a fundamental change from the original bid, would
it be
possible for them to look at their scores
, re-assess and
update
those scores based on the current pack of CV’s
that they have in front of them?’ (Emphasis added.)
This discussion
indicates that the BEC members were aware that the new team had to be
rescored according to their CVs.
[66]
The minutes further record that:
‘
SM responded
by saying that there are
two
things to consider, one being that they should look thoroughly on the
people that has been raised,
…Secondly,
the now proposed lead resources they have to be accessed if they are
equivalent or exceeds the qualifications
of the original submission.
Which means those CV’s has to be rescored on the bases of the
first response that was given by
LDM, so if this resources are less
or not equivalent to the original it will mean they do not qualify to
go further.’
Similarly Mr Mkhize
himself advised that the replaced resources must be properly
considered. It is significant that Mr Mkhize himself
had obtained
clarification in the interim from the National Treasury ‘as to
whether DTPC can accept the new proposed list
of resources and
evaluate
and
score
them
accordingly
in
terms
of
functional evaluation as set out
in the tender
…’. (emphasis added). The comparison he
proposes is the second leg in the re-assessment of the Applicant’s
bid.
He was then tasked to prepare the comparison table he proposed.
[67]
In the comparison table, Mr Mkhize specified which position and
role
was being replaced by each of the eight new personnel/resources and
the name of the old personnel/resource. The criteria utilised
in the
comparison are university qualifications, years of experience and
relevancy and professional accreditation. Then Mr Mkhize
compared the
old and new resources under each criterion and recorded the result
under assessment and outcome. The information about
the resources in
the comparison is extracted from the Applicant’s documents
submitted with the bid and in its letter dated
13 January 2016. The
actual comparison between the old and new resources is stated under
assessment. Under outcome, Mr Mhize recorded
whether the new resource
is equivalent or not equivalent to the old resource. He further
recorded when the new resource did not
meet the requirement for that
particular criterion.
[68]
Did this exercise in comparison necessarily entail the BEC ignoring

the tender criteria for functionality of key personnel or does it
constitute a departure from the criteria in the tender document?
It
is common cause that the original team was scored using the correct
criteria. It is apparent that the BEC were aware that the
new team
had to be rescored on their CVs in the first leg of the reassessment.
In the second leg of the re-assessment, the new
resources were
compared with the properly evaluated old resources. It may therefore
properly be inferred that even in the second
leg, the new resources
were in fact also evaluated against the same criteria for the
functionality of key personnel, albeit with
the benefit of a
comparison table. This is demonstrated by the fact that where the
resources had the same qualifications and experience,
the outcome was
recorded as ‘equivalent’.
[69]
Effectively therefore the resources were still evaluated according
to
the relevant criteria for key personnel and the score remained
unaltered. Similarly, where the new resources fell short and
were not
equivalent in qualification or experience to the old resources, they
too were effectively evaluated according to the relevant
criteria for
key personnel, although the outcome was that they did not meet the
Tender Data requirements for that position and
role.
[70]
D Patel, D Sukdeo, T Hudson and M Mosia specify their reasons for

scoring the new team lower. S Bogale provided reasons for not scoring
the new team lower. W Mhlongo however merely states that
‘the
experience of the proposed (team B) is not equivalent or more if
compared with the earlier submitted team.’ That
does not
conclusively indicate that he did not exercise his discretion or
apply the correct criteria. D Patel also dropped his
score in respect
of Bidder’s experience from 3/75 to 2/50.
Some of their
comments are recorded on the annexure to the BEC report.
[44]
[71]
In his letter dated 18 February 2016, Mr Mkhize advised the Applicant

that under the functionality evaluation:
‘
After the
receipt of all your confirmation of clarification, the process of
evaluation continued including the reviewed and assessment
of the
proposed team. On completion of the evaluation it was found that some
of the team resources that were subsequently proposed
were not
equivalent to the initially (original) proposed team members which
resources are part of the assessment.’
This statement is
not a model of clarity, but further clarity of how the new resources
were assessed is provided by the BEC report.
[72]
Note 2 to the
Functional Evaluation
[45]
records that the Applicant’s score ‘was subsequently
changed due to changes in its resources, having taken into account
the
level of
experience and qualifications of the new resources.’
(emphasis
added). Under
‘
Finalisation
of Functional Evaluation’ the BEC confirm in their report that:
‘
BEC members
had compared the original submission of resources to the replacement
resources in detail according to years of experience,
qualification
as well as expertise in their specific fields. Experience of key
personnel: Based on a comparison of experience of
the new/replacement
resources to the resources that formed part of the original bid
proposal, most of the (new) proposed lead resources
were previously
playing a supporting role in the original document….
The new resources
were assessed against the set evaluation criteria in order to
determine the scores that were finally awarded to
the categories of
(1) Bidder’s experience and (2) Experience of the Key
Personnel. Due to the level of experience, qualifications
and
accreditation most of the scores were dropped to align with the new
resources cv’s.’
[73]
Therefore the argument that the assessment of the new resources

comprised only of a comparative exercise is in my view not
sustainable. I am also unable to find merit in the Applicant’s

complaint that the use of the comparison table rendered the
evaluation irregular, or that relevant considerations were not
considered,
or that the re-assessment was based on a departure of the
stipulated criteria for the functionality of key personnel. Nor am I
persuaded that the use of the comparison table constituted an
infraction of the 2011 PPR 2011.
‘
11.1.1 …
The amendment of evaluation criteria, weights, applicable values
and/or the minimum qualifying score for functionality
after the
closure of bids is not allowed as this may jeopardise the fairness of
the process.’
The GBCSA
accreditation
[74]
The Applicant’s final complaint is that certain evaluators

scored it down because of its failure to appoint a GBCSA accredited
quantity surveyor, although neither the tender documents nor
the
briefing sessions specified or implied that the quantity surveyor had
to be GBCSA accredited. The Applicant initially averred
that the BEC
scoring on required experience, accreditation and green building
expertise as recorded in its report was inappropriate
because the
tender documents did not stipulate the relevant criteria.
[75]
The First Respondent responded that the challenge premised on the

green building experience is misplaced: the Applicant attained a low
score not because its quantity surveyor did not have the GBCSA

accreditation but mainly because its replaced architect lacked
sufficient GBCSA accreditation experience.
[76]
In argument, Mr
Pillay
submitted that although the First
Respondent avers that the GBCSA accreditation ‘weakness’
was due to the replaced architect
lacking accreditation the
evaluation reflected the quantity surveyor’s lack of
accreditation as the weakness. This score
was further reduced after
the comparative assessment because the BEC determined that the new
team did not have the required experience,
accreditation and green
building expertise. Although the Applicant accepts that some members
of the team were to include green
star accredited professionals, the
tender does not specify which of the professional team should be so
accredited. Mr
Pillay
therefore contended that it was unfair
to penalise the Applicant because its quantity surveyor did not have
such accreditation,
especially as it is questionable that a quantity
surveyor can serve the GBCSA requirement. He submitted that the BEC
also deliberately
overlooked the Applicant’s green star
experience which had been furnished.
[77]
Mr
Madonsela
contended in response that the tender document
made green building experience/accreditation a requirement, which the
Applicant accepted
in its replying affidavit. Although the Applicant
persists with its subsidiary argument that the tender documents did
not require
a quantity surveyor to be GBCSA approved, the Applicant’s
bid was scored lower because certain evaluators assessed the replaced

resources as weak, specifically because the new lead architect did
not have sufficient green building experience.
[78]
It is common cause that Project 1 had to attain green star
accreditation
and that the Tender Data stipulated under C3.3 that
‘The team is to include green star accredited
professionals’.
(emphasis added). The addendum to the bid documents which was
sent to all the bidders, included the briefing note in which it is

minuted that the First Respondent explained at the briefing session
that:
‘
The team is
to include green star accredited professionals to ensure that the
building may be designed to achieve 4 star green building
rating as
per the Green Building Council of South Africa (GBCSA).
It is imperative
that the GBSCA accredited professional have a firm track record of
delivering green star building using the Office
V.1 tool. Preference
will be given to accredited professionals with multiple project
experience or projects of similar size and
scope…’
It is not disputed
that the First Respondent may amend or amplify its bid documents in
terms of Clause F.3.2 of the Tender Data,
and the addendums issued
form part of the tender documents. Further the Applicant attended the
briefing when the First Respondent
confirmed that GBCSA accreditation
was a tender requisite.
[79]
Under experience of key personnel in the functionality criteria,
the
tender states:
‘
The bidder
shall submit a list of proposed professional team (registered
appropriately where applicable) for the project including
CV’s
showing experience in projects of similar nature, size and monetary
value.
Provide proof of
qualifications as well as professional registrations for all the
built professions. The CV’s required shall
include, but not
limited to, the following key personnel: -...’
The ten key
personnel listed include the architect and the quantity surveyor. The
Applicant could not or ought not to have misconceived
that GBCSA
accreditation of its key personnel was irrelevant.
[80]
In the comparison table in respect of the outcome of the replacement

of the lead architect it is noted that ‘In the context of this
appointment as outlined in the tender process this is a critical

qualification and does make a difference and is not equivalent.’
In the functionality assessment, ‘Three members of
the team are
GBCSA accredited’ is noted as a strength and under weaknesses
it is recorded that the CVs of the consultants
did not reflect a
track record of green star buildings and that the quantity surveyor
did not have GBSCA accreditation.
[81]
However under ‘Finalisation of Functional Evaluation’
in
the BEC report, in the comments explaining the lower scoring of the
replacement resources the following is recorded:
‘
Bidder’s
experience: Due to the firm PGA architects being replaced with Ruben
Reddy architects as the principal architectural
firm the score will
now drop. This is on the basis that Ruben Reddy Architects did not
have significant experience dealing with
projects of a similar scale,
magnitude and complexity as a lead architectural firm. Ruben Reddy
architects have no proven green
building experience or accreditation
which is of paramount importance for the project.
The original
Architect had 20+ years of experience; the Project Manager had 17
years of experience; the QS has 20+ years of experience;
and were
replaced with individuals that had the necessary qualifications but
did not have the required experience, accreditations
and green
building expertise…’
[82]
This assessment, which is a collation of the comments of the BEC

members, is not inconsistent with the Tender Data stipulated under
C3.3. Nor can it be held that ‘irrelevant considerations
were
taken into account or relevant considerations were not considered’.
Therefore Mr
Pillay’s
submission that the quantity
surveyor’s lack of accreditation with GBCSA is the reason that
the Applicant’s team was
scored lower is in my view not
sustainable. Nor was it the comparative exercise that resulted in the
lower score. The lower score
was deemed appropriate because of the
deficiency identified in the replacement lead architect, and the fact
that three of the replacement
personnel did not have the required
experience, accreditations and green building.
[83]
The Applicant relies on Annexure “M” to its founding

affidavit to sustain its averment that the BEC deliberately
overlooked the Applicant’s green star experience which had been

furnished. However Annexure “M” contains a generic
‘Statement on Green Building Expertise and Methodology’.

It does not provide the requisite information about GBCSA
accreditation or green star experience specific to the professionals

in the replacement team.
Conclusion: Project
1
[84]
The Applicant has failed to establish any grounds of review under

PAJA in respect of the functionality assessment by the BEC of the
Applicant’s bid in Project 1. It is therefore unnecessary
to
consider the alleged shortcomings in the ratification of the BAC of
the BEC’s report or the outcome of the appeal or the
dismissal
of the appeal by the AA.
Project 2
[85]
The tender for Project 2 invited bids for the appointment of
consultants
for the engineering, design and supervision of
construction of a purpose-built pharmaceutical
/biotech
manufacturing facility. The tender documents followed a similar
structure to those in Project 1. In assessing the bids
received for
Project 2 the First Respondent followed the same process and
procedure for evaluation of tenders as set out earlier
in this
judgment. The Applicant’s bid was scored below the 70-point
minimum threshold.
[86]
The Applicant claims that the assessment of functionality of its
bid
for Project 2 was irregular because it was scored lower on bidder’s
experience because PGA Architects allegedly had ‘no

medical/pharmaceutical experience’. However the tender document
did not call for medical/pharmaceutical experience. The BAC’s

comments also suggest that the Applicant was penalised on this basis.
However the Applicant had complied because it provided a
list of
medical/pharmaceutical projects in its work history, some of which
were listed as strengths in respect of the bidder’s
experience.
[87]
Similarly, the Applicant was penalised because its key personnel
did
not have the requisite medical or pharmaceutical experience although
the tender bid only called for details of their experience
in
projects of a similar scope. The details required were the size,
monetary value and magnitude of previous projects. There was
no
reference to medical or pharmaceutical experience. Nevertheless the
key personnel had included some medical projects as part
of their
experience. The second leg of the Applicant’s complaint is that
the First Respondent failed to obtain clarification
which the
evaluators had called for and this failure was unfair as it impacted
adversely on its assessment of the functionality
of the Applicant’s
bid on the methodology and work plan and program criteria.
[88]
The First Respondent responded that the Applicant’s contention

that it was penalised because its key personnel were deemed not to
have requisite medical or pharmaceutical experience was unfounded.

The only member of the BEC who assessed the Applicant’s bid as
not measuring up on experience of key personnel and bidders

experience was Evaluator 1 (Mr Gould). He did so because he assessed
the resident engineer as not having sufficient building background,

as noted on his evaluation sheet. All other evaluators, including T
Hudson who noted the lack of medical or biopharmaceutical experience,

assessed the Applicant’s bid in respect of bidder’s
experience and key personnel as being “
good”
and
scored the Applicant 4 out of 5. The evaluators scored the Applicant
down because they assessed its bid as weak in relation
to its
proposed methodology and work plan.
[89]
The Applicant’s contention that the First Respondent ought
to
have granted it an opportunity to clarify its proposed methodology
and work plan is predicated upon a misunderstanding of the
comments
made by the evaluator Ms M Govender who noted under its weakness in
the Applicant’s bid that:
‘
Bidders
understanding of deliverables and efforts for Phase 1 to 3 and 4 to 6
to be clarified.’
However, Ms Govender
had intended that the Applicant’s clarification be called for
only if the Applicant passed the functionality
threshold. It was not
a plea or request that other evaluators should consider affording the
Applicant an opportunity to clarify
its bid during the evaluation
stage. Such a request would have been unfair to other bidders.
Argument
[90]
Mr
Pillay
submitted that it is common cause that the tender,
and specifically the scope of services in the tender bid document,
did not call
for bidders to demonstrate medical related
/biopharmaceutical or similar experience. Yet the Applicant was
penalised for not disclosing
such medical/biopharmaceutical
experience. Accordingly the evaluation is on the basis of criterion
outside of the parameter of
the tender. As this is irregular and a
material defect in the evaluation process, the tender award in
Project 2 stands to be set
aside and be remitted for
re-determination. Mr
Pillay
pointed out that the Applicant did
nevertheless, as the record of its sub-consultants’ work
indicated, have experience in
medical/biopharmaceutical projects
[91]
He submitted further
that the failure of the First Respondent to seek clarification
prior to the
assessment of methodology and work plan and design program, resulted
in the evaluators failure to understand the Applicant’s
program
and to criticise its methodology incorrectly. As this offends against
the need for fairness as stated in
Logbro
Properties CC v Bedderson NO & others,
[46]
Mr
Pillay
submitted
that the award
should
be remitted for re-consideration alternatively that the tender
ordered to commence afresh.
[92]
Mr
Madonsela
contended that the applicant has grounded its
call for review on two mistaken claims: -
(a)
The first was that the Applicant was scored
lower because it failed
to demonstrate experience in medical/bio-pharmaceutical field, and
therefore failed to meet the minimum
threshold. This is not why the
Applicant was disqualified.
(b)
The second is that
the Applicant should been requested to clarify its ‘methodology’
and ‘work plan’ because
one of the evaluators (Ms
Govender) requested clarification. A hearing for the purposes of
clarification was not required merely
because Ms Govender mentioned
the word “
clarity”
in
respect
of
project 2. The applicant misconstrued her comments. The evaluator
subsequently explained what she meant. She, like the other

evaluators, considered applicant’s proposed methodology and
work plan to be weak. Mr
Madonsela
emphasised
that the First Respondent has in terms of the tender criteria a
discretion to determine if clarification is required,
[47]
which is underscored by the decision in
Toll
Collect.
[93]
Mr
Madonsela
contended
further that there is also no evidence that the
Applicant’s
failure to meet the functionality threshold for Project 2 could have
been cured by further clarification or that
there existed an
obligation to invite such clarification. As authority he referred to
the comment of Schippers AJ in
Milnerton
Lagoon Mouth Development (Pty) Ltd v Municipality of George &
others
[48]
that:
‘
A tenderer’s
“right” to be heard in relation to its failure to comply
with tender conditions before a tender is
awarded to a successful
tenderer who does so comply is unheard of.’
[94]
Mr
Madonsela
concluded that the Applicant simply failed to
meet the ‘functionality’ threshold in Project 2. The
evidence shows that
the evaluators lawfully exercised their
discretion while the Applicant’s proposal that it should be
rescored is arbitrary
and impermissible. He submitted that the
application for review should be dismissed or if the Applicant were
successful in the
review, then the matter should be remitted to the
First Respondent for reconsideration.
Discussion
[95]
In
Westinghouse v Eskom Holdings
the court confirmed in
paragraph 50 that evaluation on the basis of criteria outside of the
parameter of the tender is irregular.
The first issue is whether the
tender, and specifically the scope of services in the tender bid
document, did not call for bidders
to demonstrate
medical/biopharmaceutical or similar experience.
[96]
‘Scope of work’ in the Standard for Uniformity in
Construction
Procurement dated July 2015, referred to by Mr
Pillay
,
means ‘the document that specifies and describes the good,
services, or engineering and construction works which are to
be
provided and any other requirements and constraints relating to the
manner in which the contract work is to be performed.’
This is
therefore the tender document in Project 2, in which the contract
work is the ‘engineering, design and supervision
of
construction of a pharmaceutical manufacturing facility.’
[97]
This tender document calls for consultants for a pharmaceutical/bio-

technology) manufacturing facility. It further requests under
‘Bidder’s experience’ for experience in projects
of
similar scope
’ and under ‘Experience of Key
Personnel’ calls for CVs showing the experience of key
personnel ‘in projects
of a
similar nature
, size and
monetary value.’ (Emphasis added.)
[98]
What is
biotechnology? The Oxford language online dictionary defines
‘biotechnology’ as ‘the exploitation of biological

processes for industrial and other purposes…’ Wikipedia
states that biotechnology has application in four major industrial

areas, one of which is healthcare (medical). Therefore the facility
in Project 2 was both pharmaceutical and medical in nature.
As the
BEC must include three technical representatives with suitable
expertise in terms of clause 8.7.6.3 of the First
Respondent’s
SCM Policy,
[49]
the definition
of biotechnology and its application would have been within the scope
and knowledge of their expertise.
[99]
The Applicant’s claim that these were not criteria in terms
of
the Tender Data is therefore factually incorrect and unsustainable.
The bidder for such a facility has an obligation to understand
fully
the nature of the project it is bidding for (per
Toll Collect
).
The mandatory briefings are also intended to assist the bidder with
the clarification of the Tender Data. This is not an instance
where
the bidder can claim that the shortcoming is in the clarity of the
criteria, therefore rendering the award of the tender
reviewable
under PAJA. The BEC did not take into consideration irrelevant
criteria, nor did the award involve a consideration that
was not
rationally connected to the purpose of the tender document as
contemplated in
s 6(2)
of PAJA.
[100]
It is also
noteworthy that the Applicant finds no complaint with the fact that
under
the
strengths of the Bidder’s experience are included:
[50]
‘
medical
engineers….
Renovations
Health
Science
building… Alterations additions to existing
clinic
… New
health services
facility…
Renovations to
dental facility
…’ (emphasis added)
Under key personnel
a strength is 30 years’ experience (two hospitals). All these
strengths are ‘medical’ in nature.
[101]
Evaluator 1, Mr A Gould, who is an engineer, rated the Applicant at 3
for Bidder’s
experience because he considered such experience
poor in relation to the nature of the work and there were no relevant
letters
of reference. He also scored the Applicant 3 for experience
of key personnel because ‘RE does not have building background’

and the organogram was not clear about the duplicated roles of the
personnel. Another evaluator, Timothy Hudson, who referred to
medical
experience as a consideration assessed the Applicant’s bid as
‘good’ and accorded it 4 points. The rest
of the BEC
panel assessed the Applicant’s bids as “good” and
accorded a score 4 for its experience and experience
of key
personnel.
[102]
However under Methodology and Work Plan the Applicant was
consistently scored low because
four of the evaluators considered its
methodology as ‘generic’ and non-responsive. One
evaluator considered it ‘non-specific’
and another found
that it was ‘not acceptable for a project of this nature’.
Four scored the applicant at 2 and the
other two at 3. Under clause
8.7.6.1 of the SCM policy, the BEC is obliged to evaluate each
bidder’s ability to execute the
contract ‘according to
financial and technical ability’. It is therefore not
unreasonable or indicative of a failure
of the evaluators to apply
their discretion in the evaluation, that a generic work plan would be
considered non-responsive.
[103]
No factual basis has been established for the Applicant’s
submission that Ms Govender
failed to understand the proposed
methodology and that the BEC should have called for clarification or
afforded the Applicant a
hearing before evaluating its bid. Ms
Govender herself explained that she meant that clarification in
respect of phases 4-6 of
the bid should be obtained if the Applicant
passed the functionality threshold, as recorded in the BEC minutes.
[104]
In the premises I am not satisfied that the award by the First
Respondent of the tender
in Project 2 is irregular or susceptible to
review. Consequently it is again not necessary to consider the BAC’s
ratification
or the decision of the AA.
Costs
[105]
There is no reason why costs should not follow the result. I am also
satisfied that the
briefing of two counsel by First Respondent was
warranted, and their costs should be allowed.
Order
1.
The application to review
and set aside the award of the tenders by
the First Respondent to the Second and Third Respondents under case
number 7900/2016
is dismissed.
2.
The
Rule Nisi
issued under case number 6301/2016 is
discharged.
3.
The Applicant is directed
to pay the costs of the First Respondent,
such costs to include all reserved costs, the costs of the interdict
application under
case number 6301/2016, and costs consequent upon
the employment of two counsel.
_____________________________
Moodley J
APPEARANCES
Date of
hearing
:
15 September 2017
Date of
judgment
:    16 April
2021
For
Applicant

:         Mr I Pillay
Instructed
by

:         Cox Yeats Attorneys
12 Richefond Circle,
Ridgeside Office Park
Umhlanga Ridge
Durban
Tel: 031 – 536
8500
Fax: 031 5368088
Ref: P Barnard/
MC/32L7766003
Email:
pbarnard@coxyeats.co.za
For First
Respondent         :
Mr G Madonsela
SC
Ms S Mahabeer
Instructed
by

:         S D Moloi &
Associates Inc
Suite 701 Corporate
Place
9 Dorothy Nyembe
Street
Durban
Tel: 031 –
3012812
Ref: SDM/xsn/0346-16
Second
Respondent
:         AECOM
263A West Avenue
Centurion
Pretoria
Email
cihan.seuleiman@aecom.com
Third
Respondent
:
ARUP (Pty) Ltd
101 High Street
Melrose Arch
Email:
sallome.vanrhyn@arup.com
[1]
Tender No DTP/RFP/14/IFR/07/2015
[2]
Tender No DTP/RFP/!!/FR/06/2015
[3]
The FA refers to the BAC but the scores were allocated by BEC. The
BAC ratified the scores.
[4]
The FA refers to the BAC but the scores were allocated by BEC. The
BAC ratified the scores.
[5]
Section 217 of the Constitution provides:
‘
(1) When an
organ of state in the national, provincial or local sphere of
government, or any other institution identified in national

legislation, contracts for goods or services, it must do so in
accordance with a system which is fair, equitable, transparent,

competitive and cost-effective.
(2)
Subsection (1) does not prevent the organs of state or institutions
referred to in that
subsection from implementing a procurement
policy providing for -
(a)
categories
of preference in the allocation of contracts; and
(b)
the
protection or advancement of persons, or categories of persons,
disadvantaged by unfair discrimination.
(3)
National legislation must prescribe
a framework within which the
policy referred to in subsection (2) must be implemented.’
[6]
AllPay
Consolidated Investment Holdings (Pty) Ltd & others v Chief
Executive Officer, South African Social Security Agency
& others
2013
(4) SA 557 (SCA).
[7]
Airports
Company South Africa SOC Ltd v Imperial Group Ltd & others
2020
(4) SA 17
(SCA).
[8]
The PPR applicable to this matter were promulgated with effect from
7 December 2011.
[9]
The “2017 Regulations”, promulgated on 20 January 2017
were declared unconstitutional by the SCA
in
Afribusiness
NPC v Minister of Finance
2021
(1) SA 325 (SCA).
[10]
AllPay
Consolidated Investments Holdings (Pty) Ltd & others v Chief
Executive Officer, South African
Social
Agency & others
2014
(1) SA 604 (CC).
[11]
South
African National Roads Agency Ltd v Toll Collect Consortium
2013
(6) SA 356 (SCA).
[12]
This definition appears in Tender Data T2.25 of the First
Respondent’s tender document.
[13]
Steenkamp
NO v Provincial Tender Board, Eastern Cape
2007
(3) SA 121
(CC) paras 20-23.
[14]
Section 6 of PAJA provides: ‘Judicial review of administrative
action.-
(1)
Any
person may institute
proceedings
in a court or a tribunal for the judicial review of an
administrative action.
(2)
A court
or tribunal has the power to judicially review an
administrative action if—
(a)
the
administrator who took it—
1)
was not authorised to do so by the empowering provision;
(i)

acted under a delegation of power which was not authorised by the
empowering provision; or
(ii)

was biased or reasonably suspected of bias;
(b)
a mandatory
and material procedure or condition prescribed by an
empowering provision was not complied with;
(c)
the
action was procedurally unfair;
(d)
the
action was materially influenced by an error of law;
(e)
the
action was taken—
(i)

for a reason not authorised by the empowering provision;
(ii)

for an ulterior purpose or motive;
(iii)

because irrelevant considerations were taken into account or
relevant considerations were not considered;
(iv)

because of the unauthorised or unwarranted dictates of another
person or body;
(v)

in bad faith; or
(vi)

arbitrarily or capriciously;
(f)

the action itself—
(i)

contravenes a law or is not authorised by the empowering provision;
or
(ii)

not rationally connected to
(aa)

the purpose for which it was taken;
(bb)

the purpose of the empowering provision;
(cc)

the information before the administrator; or
(dd)

the reasons given for it by the administrator;
(g)
the
action concerned consists of a failure to take a decision;
(h)
the
exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which the
administrative
action was purportedly taken, is so unreasonable that
no reasonable person could have so exercised the power or performed
the
function; or
(i)

the action is otherwise unconstitutional or unlawful.’
[15]
Allpay
CC
para
56 states: ‘Once a finding of invalidity under PAJA review
grounds is made, the affected decision or conduct must be
declared
unlawful and a just and equitable order must be made’.
[16]
In
Sanyathi
Civil Engineering& Construction (Pty) Ltd & another v
Ethekwini Municipality & others; Group Five Construction
(Pty)
Ltd v Ethekwini Municipality & others
[2012]
1 All SA 200
(KZP) it was held at paras 34-35 that the procurement
laws are prescriptive because the award of tenders is notoriously
prone
to manipulation and that if an organ of state wishes to
exercise discretion it must reserve that discretion for itself in
the
tender document in the interest of fairness, transparency and
competitiveness provided that the PPPFA permits such discretion.
[17]
AllPay
CC
para
92.
[18]
AllPay
CC ibid; Westinghouse Electric Belgium SA v Eskom Holdings (Soc) Ltd
& another
2016
(3)
SA
1
(SCA) para 41.
[19]
Sizabonke
Civils CC trading as Pilcon Projects v Zululand District
Municipality & others
2011
(4) SA
406
(KZP).
[20]
See in this regard National Treasury
Instruction
Note dated 3 September 2010 - The amended
guidelines
in respect of Bids that include functionality as a criterion for
evaluation
(National
Treasury website).
[21]
G Quinot ‘The Role of Quality in the Adjudication of Public
Tenders’
[2014]
PER
32
at 7.
[22]
All
Pay CC
para
38.
[23]
BKS
Consortium v Mayor, Buffalo City Metropolitan Municipality &
others
[2013]
4 All SA 461
(ECG)
paras
89 and 92-94.
[24]
Westinghouse
Electric Belgium SA v Eskom Holdings (Soc) Ltd & another
2016
(3) SA 1
(SCA).
[25]
See
Sanyathi
above
para 35.
[26]
See the judgment of the court
a
quo
in
the
Toll
Collect
matter
para 62.
[27]
All
Pay CC
para
22.
[28]
Annexure “K1-13”: Vol. 5 at 317-329.
[29]
Annexure “I1-3”: Vol. 5 at 313-315.
[30]
Annexure “N1-17”: Vol. 5 at 336-352; Regulations, 2011.
[31]
South
African National Roads Agency Ltd v Toll Collect Consortium
2013
(6) SA 356
(SCA) para 2.
[32]
Cape
Town City v South African National Roads Agency Ltd & others
2015
(6) SA 535
(WCC) paras
213-224.
[33]
Turnbull-Jackson
v Hibiscus Coast Municipality & others
2014
(6) SA 592
(CC) paras 54-57.
[34]
Metro
Projects CC & another v Klerksdorp Local Municipality &
others
2004
(1) SA 16 (SCA).
[35]
See comparison of ‘original’ and ‘replaced’
Key Personnel in Annexures “M” and “N”

(together with
Evaluators’
comments thereon), Vol. 5 at 332-352.
[36]
Summary of Evaluators’ reconsideration on ‘Key
Personnel’ at answering affidavit: Vol. 4 paras 96- 102 at
236-239.
[37]
Tetra
Mobile Radio (Pty) Ltd v MEC, Department of Works & others
2008
(1) SA 438 (SCA).
[38]
Westinghouse
Eskom Holdings
above
para 43.
[39]
AllPay
Consolidated Investment Holdings (Pty) Ltd & others v Chief
Executive Officer, South African
Social
Security Agency & others
2013
(4) SA 557
(SCA) para 21.
[40]
Westinghouse
v Eskom Holdings
above
para 36.
[41]
AllPay
Consolidated Investments Holdings (Pty) Ltd & others v Chief
Executive Officer, South African
Social
Agency & others
2014
(1) SA 604
(CC).
[42]
Ten key personnel are listed in the Tender Data for evaluation under
functionality.
[43]
Record: Vol. 3 at 296-297, BEC scoring before and after
clarification.
[44]
Volume 6 at 400-401. Annexures “R35-36” to the BEC’s
report.
[45]
Volume 6 at 400-401. Annexures “R35-36” to the BEC’s
report.
[46]
Logbro
Properties CC v Bedderson NO & others
2003
(2) SA 460
(SCA).
See
also
Kawari
Wholesalers
(Pty) Ltd v MEC: Department of Health, North West Province &
others
(
1807/07)
[2008] ZANWHC 12
(6 March 2008) paras 10-12.
[47]
Volume 5, Annexure “B2, Clause F. 2.1.2 para 10.
[48]
Milnerton
Lagoon Mouth Development (Pty) Ltd v Municipality of George &
others
[2005]
JOL 13628
(C) para 31.
[49]
Volume 6 at 453.
[50]
Record Volume 6 at 499.