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[2023] ZAKZPHC 52
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Shula Construction CC v Ethekwini Municipality and Another (5838/2022P) [2023] ZAKZPHC 52 (24 May 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
5838/2022P
In the matter between:
SHULA CONSTRUCTION
CC
APPLICANT
and
ETHEKWINI
MUNICIPALITY
FIRST RESPONDENT
STEDONE CIVILS (PTY)
LTD
SECOND RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
First Respondent advertised for tenders in respect of the provision
of civil engineering
services for the Redcliffe Housing project
(Wards 59 & 60). Applicant was one of the tenderers and was
informed during
February 2022 that it had been unsuccessful.
Its bid was found to be unresponsive as it only achieved a scoring of
51 out
of 100 points where it required at least 60 points for it to
proceed. Applicant now seeks that the awarding of the tender
to
Second Respondent be reviewed and set aside; that the contract
entered into between First and Second Respondent be declared
nul
and
void
ab initio
and costs if the matter is
opposed. The application for review has been opposed by both
First and Second Respondents.
[2]
It was submitted by Mr Pedderson, on behalf of Applicant, that the
issues that require
determination was whether First Respondent
correctly interpreted and correctly scored Applicant and whether it
should have been
declared non-responsive or not.
[3]
It was submitted on behalf of Applicant that in terms of section
6(2)(c), 6(2)(c)(iii),
6(2)(e)(x), 6(2)(f)(ii)(cc)(dd) and 6(2)(i) of
PAJA Applicant was entitled to bring the review application and that
the grounds
for the review are set out in these sections. It
was submitted on behalf of Second Respondent that Applicant failed to
set
out in its founding affidavit the grounds of review and that that
was only brought to the attention of everyone at the hearing.
Mr Pedderson referred me to two cases Logbro Properties CC v
Bedderson NO and others
2003 (2) SA 460
(SCA) paragraph 5 and Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at paragraph 25. They
both deal with the right to review an administrative decision and it
is not disputed in this matter
and therefore not necessary to deal
with it any further. I am satisfied that Applicant, having been
aggrieved by the outcome,
is entitled to bring a review application.
Although it may not have been set out in detail what exactly the
grounds of review
were it is possible from a reading of the papers to
establish what the grounds are.
[4]
It is apparent from Applicant’s papers that the main
contentions are that the
bid adjudication and bid evaluation
committee had incorrectly scored the points of Applicant relating to
the contract manager,
site agent and the foreman and the methodology
and accordingly that as a result of the incorrect scoring it was
found to be unresponsive.
It was submitted that if it was done
correctly then indeed it would have scored more than 60 points.
[5]
It may be prudent at this stage to refer to the tender requirements
which appear on
page 143 of the indexed papers. On page 143 it
sets out the criteria for the contracts manager, site agent and
foreman.
It clearly sets out what experience is required to
obtain a certain level in terms of the scoring diagram. At the
bottom
of page 143 it is marked NB and it is stated:
“
The
period stipulated in the respective levels for the various key
personnel, shall only be counted for the time spent in that key
position. No period prior to being promoted to one of the respective
positions above shall be counted towards the experience of
the
employee.”
[6]
On page 66 of the papers it sets out that Applicant had only
completed three relevant
projects within the past 15 years and
therefore fell into level 3. As far as the contract manager is
concerned it fell into
level 1 as most of his experience was
irrelevant and as far as the site agent that he had no relevant
experience therefore also
fell into level 1 and the foreman only had
3 and ½ years relevant experience therefore also falling into
level 1.
[7]
It was submitted on behalf of Applicant that from page 445 to 452 it
set out the position
of the managing member/contracts manager and/or
the projects that it had dealt with over the years. The
curriculum vitae
of the site agent was set out on page 455 and
sets out everything that he had done over the years. That of
the foreman is
set out in pages 462 of the indexed papers and sets
out the previous work which he had done. As far as the
construction
methodology is concerned it was submitted that it was
the contention of Applicant that it could not include it as it was a
requirement
that it employs local labour as subcontractors and that
that could only be established when the contract had been amended.
[8]
It was submitted on behalf of First Respondent that the issues were
narrow and that
as appears from page 143 the criterion for the
project organogram and experience of key staff is set out clearly on
that page.
Further it is stated at the bottom of the page and
marked NB which is referred to in paragraph 5 above. It was
submitted
by First Respondent that there was a volume 6 which had
been missed by all the parties. Applicant had in actual fact at
page
633 thereof set out the subcontractors that were to be used.
This however does not assist Applicant because it would only
have
granted it 2 points which would still have resulted in Applicant
still being far short of the points that it required.
It was
submitted that Applicant did not meet the threshold according to the
point that were scored and accordingly that the application
should be
dismissed. I was referred to Dr J S Moroka Municipality v The
Chairperson of the Tender Evaluation Committee of
the Dr J S Moroka
Municipality
(2014) 1 All SA 545
(SCA) where it was held that there
was no discretion to condone a failure to comply with the prescribed
minimum prerequisites.
[9]
It was submitted on behalf of Second Respondent that the volume which
First Respondent
was referring to in relation to the subcontractors
was not before Court and therefore it cannot be considered. It
was submitted
that Applicant had to set out the experience of the
various persons and had to comply with the specifications required.
It
was submitted that the bid evaluation committee acted correctly
and that the
curriculum vitae
of the project manager which was
submitted on behalf of Applicant did not set out the experience which
was in relation to a housing
project constituting multidisciplinary
civil engineering infrastructures. The site agent had to have
between 11 and 15 years’
experience in projects of a similar
nature. The
curriculum vitae
submitted by Applicant did
not have such experience and therefore did not qualify for the
required points to be allocated.
The same was the position with
the foreman. Further no methodology of subcontractors was
provided and accordingly First Respondent
scored Applicant correctly
in this regard. It was submitted that the committee considered
all the facts and correctly found
that Applicant was non-responsive.
[10]
In considering the submission on behalf of Applicant consideration
must be given to the requirements
as set out in the tender
documents. The tender set out clearly with regard to the
project manager, the site agent and the
foreman what experience was
required and also the number of years’ experience required in
each case. Applicant provided
curriculum vitaes
in
respect of the 3 positions but did not provide a construction
methodology as it was contended that subcontractors had to be
employed from the local community and it could therefore not have
been included at that stage. However as was submitted on
behalf
of First Respondent it appears that such a list which was provided
however did not form part of the record, which was not
handed in as
part of the record but also if indeed it was it would only have
awarded 2 further points which would still have resulted
in Applicant
scoring less than the number of points which Applicant required to
attain a score of 60.
[11]
The main dispute by Applicant is the scoring which was done by the
evaluation committee and that
if it was scored correctly Applicant
would have had a higher score and accordingly would have been found
to be responsive and would
not have been disqualified. It would
therefore have been a responsive tender.
[12]
Applicant in the adjudicating process scored 51 out of 100 points and
submits that if it was
done correctly it should have scored 67
point. It is conceded by Applicant that the number of
evaluation points for functionality
was 60.
[13]
In the functionality evaluation criteria the tenderers experience is
a total of 40 points and
the experience of key staff namely the
contract manager 5 points, the site agent 10 points and the foreman
10 points. The
functionality evaluation panel consisted of four
persons. In respect of Applicant it found that the tenderers
experience
in the past 15 years only had 3 relevant projects and
therefore fell into level 3. It included a key staff specific
and admin
staff and fell into level 4. The contract manager has
relevant qualifications but irrelevant experience and falls into
level
1. The staff site agent has relevant qualification but no
relevant experience and fell into level 1 and the foreman had 3
to 5
years relevant experience and fell into level 1.
[14]
From the score cards that were provided in respect of the tender of
Applicant the total scores
that were awarded to Applicant was 48, 50,
49 and 56 thus the average of 51. From this it is apparent that
not one of the
four persons who scored Applicant awarded it the
required 60 points. As stated previously even if the 2 points
extra for
the methodology was granted then it may have increased the
one scorer to 58 which is still below 60 and would have only had an
effect of a ½ point on the total score. A perusal of the
score cards sets out in each case clearly the number of years’
experience, qualifications etc. that was required in providing the
necessary score.
[15]
In respect of the contract manager a score of 1 was awarded. It
is apparent from these
score cards that, Mr Naidoo, of Applicant was
the managing member for 20 years and only a contract manager for a
period 3 years.
It varied with the scorers between 3 years
contracts experience and 2 years’ experience and was therefore
awarded accordingly.
This is taken from the
curriculum vitae
which Mr Naidoo provided wherein his employment history states that
he was a contract manager from July 1997 to April 2000 and
from April
2000 to date was the managing member of Applicant. It is
therefore not apparent from being the managing member
if he was in
actual fact involved in each project and actually acted as the
contract manager. Accordingly from the information
that was
provided by Applicant the scoring was done and it does not appear
that it was done to the prejudice of Applicant.
The same
applied to that of the site agent and the foreman and this was also
based on the
curriculum vitae’s
which were provided by
Applicant when the tender was submitted.
[16]
It would accordingly, from what has been set out above, appear that
there was no scoring done
which was not done in terms of the
guidelines which were provided. In actual fact it appears that
if there had been any incorrect
scoring it was based on the incorrect
information which was provided by Applicant in submitting its tender
and not setting out
clearly what period Mr Naidoo acted as contract
manager. As set out above the guideline was specific that only
the period
in which such a person performed duty as a contract
manager would be taken into account. The result would thus be
that the
period which he was a managing member and not a contract
manager was accordingly not taken into account and this was due to
the
manner in which the
curriculum vitae
had been completed.
[17]
In the circumstances I am unable to find that the scoring by First
Respondent was done incorrectly
or to the prejudice of Applicant.
First Respondent provided a complete record of the scoring of the
relevant documents etc.
and therefore it is determinable from these
documents how these specific persons scored each of the tenders and
on what basis the
points were allocated.
[18]
In the circumstances Applicant has failed to make out a case that the
decision to award the tender
be reviewed and set aside.
Accordingly the following
order is made:
The application is
dismissed with costs.
P
C BEZUIDENHOUT J.
JUDGMENT
RESERVED ON:
5
MAY 2023
JUDGMENT
HANDED DOWN ON:
24
MAY 2023
COUNSEL
FOR APPLICANT:
M
B PEDERSEN
Instructed
by:
M
B Pedersen & Associates
DURBAN
Ref:
M B PEDERSEN
Tel:
031 072 0324
c/o:
Bertus Appel Attorneys
PIETERMARITZBURG
Tel:
033 342 3551
COUNSEL
FOR FIRST
RESPONDENT:
V
V LUBELWANA
Instructed
by:
Legator
McKenna Inc.
WESTVILLE
Ref:
MAT5957
Tel:
031 305 1571
c/o:
Morne Du Plessis Attorneys
PIETERMARITZBURG
Ref:
MICHELLE
COUNSEL
FOR SECOND RESPONDENT:
Instructed
by:
John
Dua Attorneys
PINETOWN
Ref:
S0466/00017/J DUA/NR
Tel:
031 7015000
c/o:
Austen Smith Attorneys
PIETERMARIZBURG
Ref:
M MCHUNU/Jolene/E3/J0016/18
Tel:
033 392 0500