Minister: National Department of Public Works & Infrastructure v HBC Construction (Pty) Ltd and Others - Appeal (CA213/2021) [2023] ZAECMKHC 109 (3 August 2023)

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[2023] ZAECMKHC 109
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Minister: National Department of Public Works & Infrastructure v HBC Construction (Pty) Ltd and Others - Appeal (CA213/2021) [2023] ZAECMKHC 109 (3 August 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO.  CA213/2021
NOT
REPORTABLE
In
the matter between:
THE
MINISTER: NATIONAL DEPARTMENT OF
PUBLIC
WORKS & INFRASTRUCTURE
Appellant
and
HBC
CONSTRUCTION (PTY) LTD
First
Respondent
RODPAUL
CONSTRUCTION (PTY) LTD
Second
Respondent
NDC
GENERAL BUILDING CONSTRUCTION SERVICES CC
Third
Respondent
APPEAL
JUDGMENT
HARTLE
J
Introduction
[1]
The appellant appeals, with the leave of the
Supreme Court of Appeal, against the whole of the judgment and orders
of the court
a quo
handed
down on 10 November 2020 pursuant to an application for judicial
review under the provisions of the Promotion of Administrative

Justice Act, No. 3 of 2000 (“PAJA”).  The concerned
orders read as follows:
“
1.
The impugned decisions are reviewed and set aside.
2.
The tender is remitted back to the department for reconsideration in
terms of the provisions
of section 8 (1)(c)(i) of PAJA.
3.
That the first respondent (appellant)
shall
pay the applicant’s (first respondent on appeal)
taxed or agreed party and party costs
in this application, as well as the applicant’s (first
respondent on appeal)
taxed
or agreed party and party costs under case number 661 / 2020 in the
Eastern Cape High Court, Grahamstown.”
[2]
The “impugned decisions” were made
during the evaluation and award by the appellant as “employer”
of a tender
in the arena of public procurement. The administrative
action under scrutiny entailed the following:
2.1
the decisions to declare as administratively responsive the bids of
the second and third respondents;
2.2
the decision to award the tender to the second respondent; and
2.3
the decision to declare the bid of the first respondent ineligible
for the tender.
[3]
The tender was described as for:
“
Port
Elizabeth Kwazakhele SAPS: Application for condition based
maintenance of civil, electrical & structural elements of Station

and Official Quarters- Reference Number 19/2/4/2/2/6405/151”
(
“
the “tender”).
Salient
facts
[4]
The appellant placed an advertisement for the
tender during April 2019 inviting bids from interested parties.
[5]
The bid invitation for the tender recorded
that the bid would be evaluated in terms of the 80/20 preference
points scoring system.
To pre-qualify for the tender, bidders would
have to have a B-BBEE status level of between 1 and 3 and would have
to subcontract
a minimum of 30% of the value of the tender to EME’s
or QSE’s that are 51% owned by “black people”.
[6]
A minimum functionality score of 50% in relation
to the criteria set out in the bid invitation was required for
further evaluation
and only bidders that met the minimum threshold
for local production and content would be considered.
[7]
A compulsory site meeting for prospective bidders
held on 16 May 2019 for the purpose of clarification was duly
attended by the
first respondent and it submitted its bid together
with 28 other tender hopefuls prior to the stipulated closing date
for the bid
of 18 June 2019.
[8]
All three of the respondents’ bids survived
the responsive phase.  The other 26 bids were declared
“administratively
non-responsive” for a variety of
reasons including that mandatory pre-qualification criteria were not
met, and mandatory
documents were either not submitted at all or were
not correctly completed and submitted.
[9]
In the final outcome the first respondent’s
bid was declared ineligible by the appellant and the tender was
awarded to the
second respondent.
[10]
As
an aside it was initially understood by the first respondent that it
had been trounced from the bidding contest even before having
been
evaluated for price and preference. (Mr. Nepgen who appeared on its
behalf however fairly conceded that it had to be accepted,
on the
application of the
Plascon-Evans
Rule,
that the first respondent had endured the “race” until it
was excluded as a result of a risk determination undertaken
by the
appellant in the final evaluation stage of the tender process, that
is, after it had been scored points for price and preference.)
[1]
[11]
The brief reason indicated to the first respondent
for the appellant’s decision reached in the procurement process
that it
had been unsuccessful (
sans
any justification given for why the second
respondent had instead been awarded the tender since it was not a
bone of contention
at the time) is that it had “
Failed
the risk assessment due to non-compliance with quality and adherence
to contractual commitments.”
The
Tender
[12]
In
terms of the tender Data, the Standard Conditions of Tender (SCT) as
contained in Annexure “F” of the CIDB’s
revised
Standard for Uniformity in Construction Procurement (“the
Standard”) promulgated in Government Gazette Number
29138 dated
18 August 2006, as amended from time to time, were applicable to the
tender, as varied by the tender Data.
[2]
[13]
The tender Data amended and supplemented the
Standard Conditions of tender and were required to have precedence in
the interpretation
of any ambiguity or inconsistency between it and
the SCT.
[14]
Clause F.2.1 of the tender Data set out the
eligibility criteria for the submission of a tender offer which
included the following:
14.1
eligibility requirements in relation to CIDB grading in part A;
14.2
functionality criteria, weighting and threshold value in Part B,
recording specifically that “
Functionality may only be
applied as a prequalification criterion. Such criteria establish
minimum requirements whereafter bids
will be evaluated solely on the
basis of price and preference”
; and
14.3
eligibility requirements in respect of “
risk to employer”
in Part C.
[15]
Clause
F.3.11.1 of the tender Data recorded that “
the
evaluation of responsive tenders is Method 2.”
[3]
[16]
Clause F.3.11.1 of the STC sets out method 2 and
records that “
Tenders that have
achieved the minimum qualification score for functionality must be
evaluated further in terms of the preference
point system prescribed
in paragraphs 4 and 5 below.”
This
is indeed consistent with what is set out in Part B of F.2.1 of the
tender Data.
[17]
Clause F.3.11.3 of the STC, under the rubric of
“
Method 2: Functionality, Price
and Preference”
, sets out the
basis upon which points will be allocated for both price and
preference and records at paragraph 4 (e) thereunder
that “
Subject
to paragraph 4.3.8 the contract must be awarded to the tender
(Sic)
who scores the highest total number of
points.”
[18]
The reference to paragraph 4.3.8 is a reference to
the Standard. This paragraph in the Standard records that: “
A
contract may be awarded to a tender
(Sic)
that did not score the highest points,
only in accordance with section 2(1) (f) of the Preferential Policy
Framework Act, 2000.”
[19]
Section
2 (1) (f) of the PPPFA in turn records that “
the
contract must be awarded to the tenderer who scores the highest
points, unless objective criteria in addition to those contemplated

in paragraph (d) and (e) justify the award to another tenderer.”
[4]
The
Eligibility requirement in respect of risk to the employer
[20]
It is necessary to emphasize what the tender Data
provided in respect of the requirement of and procedure for the
determination
of risk (referenced in the review application as the
“
impugned process”)
that was adopted by the appellant in declaring the
first respondent’s bid ineligible.
[21]
Clause C thereof states as follows:
“
C.
ELIGIBILITY IN RESPECT OF RISK TO EMPLOYER:
Provisions applicable
to Evaluation Method 1 and 2:
Tender offers will be
evaluated by an Evaluation Committee based on the technical and
commercial risk criteria listed hereunder.
Each criterion carries the
same weight/importance and will be evaluated individually based on
reports presented to the Evaluation
Committee by the Professional
Team appointed on the project. A tender will be declared
non-responsive and removed from any further
evaluation if any one
criterion is found to present an unacceptable risk to the Employer.
In order for the
evaluation reports to be prepared by the Professional Team, the
Tenderer is obliged to provide comprehensive information
on form DPW-
09 (EC). Failure to complete the said form will cause the tender to
be declared non- responsive and removed from any
further
consideration. The employer reserves the right to request additional
information over and above that which is provided
by the Tenderer on
said form. The information must be provided by the Tenderer within
the stipulated time as determined by the
Project Manager, failing
which the tender offer will
mutatis mutandis
be declared
non-responsive.
C.1 Technical Risks:
C.1.1 Criterion 1:
Quality of current and previous work
Quality of current and
previous work performed by the Tenderer in the class of construction
work stated above as per the evaluation
report prepared by the
Professional Team, based on its research and inspection of a
representative sample of the Tender’s
current and previous work
as reflected on form DPW 09 (EC), as well as, if necessary, of any
additional work executed by the Tenderer,
not reflected on form DPW-
09 (EC).
C.1.2 Criterion 2:
Contractual commitment
Adherence to contractual
commitments, demonstrated by the Tenderer in the performance on
current and previous work, evaluated in
terms of:
a)
the level of progress on current projects in
relation to the project programme or, if such is not
available/applicable, to the contractual
construction period in
general;
b)
the degree to which previous projects have been
completed within the contractual completion periods and/or extensions
thereto;
c)
general contract administration, i.e., compliance
with contractual aspects such as laws and regulations, insurances,
security, written
contract instructions, subcontractors, time delay
claims, etc. as can generally be expected in standard/normal
conditions of contract.
C.2 Commercial risks:
The level to which
agreement with the Tenderer is reached in respect of the adjustment
of rates which are considered to be imbalanced
or unreasonable and to
eliminate errors or discrepancies without changing the tendered total
price, over and above the correction
of arithmetical errors as
provided for in F.3.9.”
[22]
Despite the method and criteria for eligibility in
respect of risk provided for separately under Part C, on the face of
it there
appears to be an overlap of the criteria relating to
quality, contractual commitment, and financial capacity listed under
the table
for the functionality criteria corresponding to a
particular weighting factor.  This imparts that these
considerations were
required to be traversed in the responsive or
qualification phase as an incident of functionality and may have been
the reason
the court
a quo
determined that the risk assessment that was
applied in declaring the first respondent’s bid ineligible was
“
part of the pre-qualifying
criteria that
had to be used to
evaluate the responsiveness of the submitted bids
.”
The tender Data however warned that functionality
could only be applied as a pre-qualifying criteria before proceeding
to the evaluation
that was to ensue thereupon solely on the basis of
price and preference.
[23]
Clause B provided as follows in this respect:
“
B.
INDICATE THE FUNCTIONALITY WEIGHTING APPLICABLE TO THIS BID
:
Note:
Functionality may only be applied as a prequalification criterion.
Such criteria is used to establish minimum requirements
where after
bids will be evaluated solely on the basis of price and preference
.
Functionality
Criteria
Weighting Factor
RELEVANT
CONSTRUCTION WORKS EXPERIENCE ON PREVIOUS CONTRACTS OF A SIMILAR
NATURE, SCOPE AND/OR COMPLEXITY
30
REFERENCES FROM
CLIENTS/CONSULTANTS FOR PROJECTS OF SIMILAR IN NATURE AND SCOPE
20
FINANCIAL CAPACITY
30
COMPETENCE OF KEY
PERSON(S), PROFESSIONAL AND TECHNICAL PERSONNEL
20
Total
100 Points
(Weightings
will be multiplied by the scores allocated during the evaluation
process to arrive at the total functionality points)
Minimum
functionality score to qualify for further evaluation
50
(Total
minimum qualifying score for functionality is 50 Percent
)”
[24]
It is also relevant to note that the tender Data
did not adopt the standard refrain employed in F.3.13 which enjoins
an employer
to accept the tender offer if in its opinion “
it
does not present any risk”
to
it.  The tender Data provided instead as follows:
“
Tender
offers will only be accepted if:
a)
the tenderer or any of its directors is not listed
on the Register of Tender Defaulters in terms of the Prevention and
Combatting
of Corrupt Activities Act, 2004 (Act No. 12 of 2004) as a
person prohibited from doing business with the public sector;
b)
the tenderer has not:
i.
abused the Employer’s Supply Chain
Management System; or
ii.
failed to perform on any previous contract and has
been given a written notice to this effect;
c)
the tenderer has completed, signed and submitted
the PA-11 Declaration of Interest and Tenderer’s Past Supply
Chain Management
Practices and there are no conflicts of interest
which may impact on the tenderer’s ability to perform the
contract in the
best interests of the employer or potentially
compromise the tender process; and
d)
the tenderer is registered with:
the Unemployment
Insurance Fund (UIF); and
ii)  the Workmen’s
Compensation Fund.”
The
review application
[25]
The
orders that are the subject of the present appeal were granted in
favour of the first respondent who successfully challenged
both the
award of the tender by the appellant to the second respondent (the
culminating decision) and the related decision declaring
the first
respondent’s bid ineligible pursuant to the risk assessment
(the risk decision) undertaken in terms of Clause C.
In response to
the complaint that the second and third respondents should have been
eliminated during the responsive phase already
(decisive from the
first respondent’s perspective as to what instead happened
during the evaluation or award phase and bearing
on the issue of
prejudice to it),
[5]
the court
a
quo
also
set aside two discrete decisions of the Bid Evaluation Committee
(“BEC”) of the Department declaring these bids
as
administratively responsive.
[6]
[26]
The
first respondent competed with the second and third respondents (who
did not oppose any of the relief sought by the first respondent)
in
the final contest for the award of the tender, that is in the
evaluation phase, theirs being the only three bids that passed
the
functionality threshold.
[7]
The
third respondent’s bid was disqualified in this final phase
purportedly due to commercial risk, and the first respondent’s

due to technical risk.
[27]
It
is the first respondent’s case that, after having been scored
positively for functionality in accordance with the tender
Data and
applicable regulatory framework, its tender had only to be
adjudicated based on price and preference, on which basis it
should
have prevailed as the winner since its bid was some R3 700 000.00
less expensive than the second respondent’s.
[8]
According to the appellant, however, the three responsive bidders,
after scoring them points for price and preference, were
in any event
required still to be subjected to the risk evaluation that had been
well portended in the tender data under Part C,
as they in due course
were, in respect of which the first and third respondents came up
short, resulting in the BEC recommending
the second respondent for
appointment.
[28]
It
is not in contention that the first respondent’s tender was
responsive and met the required functionality and pre-qualification

criteria but, according to the appellant, it floundered when it came
to the risk assessment.
[9]
[29]
It
is that risk evaluation that caused certain controversy in the matter
and provided the impetus for the review in the first instance
before
the court
a
quo.
Although
the first respondent perceived that it had been excluded from the
contest even without having been scored on price and
preference
despite having passed on functionality (a claimed irregularity all on
its own according to it), the appellant pleaded
that it had been
disqualified only in the final stages of the process, and then, as a
result of the risk evaluation undertaken
by it as foreshadowed in
clause C of the tender Data.
[10]
[30]
In
its founding affidavit the first respondent maintained that once it
had achieved the functionality threshold, the tender Data
and
legislative framework required its bid to be allocated points for
price and preference, but instead of doing so, the department

“
undertook
the impugned process”
and
declared its bid ineligible. The appellant averred to the contrary
that, in accordance with the statutory and tender contractual

requirements, it scored all three respondents for price and
preference, in fact elevating the first respondent to the highest
scoring, at least in relation to the second respondent who was in the
penultimate contest with it after the third respondent’s
bid
was disqualified,
[11]
and
lastly carried out its risk evaluation, which is when it disqualified
its bid.
[31]
In its founding papers launching the review
application the first respondent criticized the “impugned
process” in trenchant
terms:
“
20.
It has become standard practice for the Department to incorporate
into its tender documentation, as
occurred in this matter, a process
to declare bidders ineligible as a result of “risk to the
employer” (“the
impugned process”).
21.
This application concerns,
inter alia
, the lawfulness of the
utilization of this process, which utilization self-evidently results
in acceptable bids otherwise being
declared ineligible often at the
expense of the South African taxpayer, as occurred in this matter,
where the second respondent
was awarded the tender at a price
substantially more expensive than that of the Applicant.
22.
The prudent use of the resources of national government, especially
after the much publicized
widescale state capture, is a national
imperative.
23.
It is respectfully submitted that the widescale use of the impugned
process by the Department
and the consequent impugned decisions which
flowed therefrom amounts to administrative action which directly
affected the constitutional
rights and expectations of not only the
applicant (first respondent on appeal)
but
also taxpayers in general.”
[32]
To this opening salvo, the appellant retorted:
“
14.1
It is denied that the process whereby risk assessment is
utilized is an “impugned process” and denies therefore

that utilization thereof justifies the present review application.
14.2  It is in fact
a constitutional imperative under section 217 of the Constitution,
particularly in relation to the principle
of cost-effectiveness, that
risk assessment forms an integral part of the evaluation process,
more particularly as it is not cost-effective
to award a tender to a
party who simply scores favorably on price and preference but there
are risks involved in executing the
work, whether through lack of
experience, adequate personnel or financial resources.”
[33]
It is the question of the legal permissibility of
this process or practice made provision for in its tender Data that
the appellant
says it adopts  as an “integral part”
of its evaluation process in awarding a tender (including the one
under
consideration), and how it is and was applied in this case (not
pertinently  dealt with by the court
a
quo
in its judgment), that appears to
have been a further basis for it to have persuaded the SCA, this
apart from its contention that
there were reasonable prospects of the
appeal succeeding, that the matter was one of substantial importance
to the general public
and constituted a compelling reason why the
appeal should be heard. The appellant contended in the application
for leave to appeal
in this respect that the matter involved “
an
important question of law and the administration of justice
generally”
that particularly
required the appeal to be heard before this court.
[34]
As
is illuminated in
Watt
Power Solutions CC v Transnet SOC Limited
[12]
that question of law, evidently framed as whether functionality can
be used as an assessment tool in the adjudication of a tender
in the
award phase (since the 2017  Regulations applicable in this
instance  distinguished between objective functionality
criteria
required to meet the functionality threshold and “objective
criteria” applied thereafter in the award phase
as a reason not
to award a tender to a bidder scoring the highest), has clearly
generated controversy that has not yet been resolved
by the
courts.
[13]
Whether the controversy still needs to be resolved however seems no
longer to be an imperative in the light of the
recent substitution of
the 2017 regulations.
[14]
[35]
In any event the appellant laid the basis
concerning this challenge as follows:
“
31.
Inasmuch as the provisions related to risk assessment are contained
in various tender documentation
of the Applicant (Appellant) and are
frequently used, a discrete issue of public importance arises which
will have an effect on
future matters.
32.
This is particularly so as indicated, where members of the general
public who tender for
works through the National Department of Public
Works are faced with tender data which is widely used and which
contains risk assessment
procedures as is in the present instance.
33.
It is accordingly imperative to determine whether a risk assessment
of a particular tenderer
could only be validly employed as part of
the functionality considerations or whether it can be utilized
elsewhere.
34.
In this regard the provisions of section 217 of the Constitution are
paramount and a contextual
clarification by the above Honorable Court
regarding the provisions of
section 2
(1)(f) of the
Preferential
Procurement Policy Framework Act No. 5 of 2000
and the Regulations
thereunder are necessary (in this regard this Honorable Court has
recently found that certain of the Regulations
are unconstitutional).
35.
Regulation 11
of the Regulations provide that a contract may be
awarded to a tenderer who did not score the highest points whilst
regulation 5
(7) provides that each tenderer that obtained a minimum
qualifying score for functionality must be evaluated further in terms
of
price and preference points and any objective criteria envisaged
in
regulation 11.
The applicant contends that the risk assessment it
employed complied with
regulation 11.
0.
51in; margin-bottom: 0in; line-height: 150%">
36.
The Standard for Uniformity in Construction Procurement (July 2015)
which formed part of
the application papers also provides in clause
4.3.8 that a “…contract may be awarded to a tender that
did not score
the highest of points, only in accordance with
Section
2
(1) (f) of the
Preferential Procurement Policy Framework Act 2000
.
37.
The entire issue of risk assessment and whether or not it is part and
parcel of functionality
and how it is to be applied is of critical
importance and this issue requires the attention with respect of the
above Honourable
Court.
38.
There is in any event already strong indication in our law that risk
assessment could be
utilized in a tender process where functionality
and price and preference has been considered (see Rainbow Civils CC v
Minister
of Transport and Public Works, Western Cape [2013]
ZAWCHC  3 (February 2013).”
[36]
In
formulating its grounds for the PAJA review the first respondent
initially complained primarily that the appellant had utilized
the
impugned process to declare its bid ineligible
before
having
scored it for price and preference. It claimed that it was wrong to
have ignored the prescripts of the law and the tender
documentation
relying on Method 2 that stipulated to the contrary that the
appellant was obliged, after it had met the functionality
threshold,
to so have scored it.
Thus,
a mandatory and material procedure or condition prescribed by an
empowering provision (read here the cumulative provisions
of the
Preferential Procurement Policy Framework Act, No. 5 of 2000
(“PPPFA”), the Preferential Procurement regulations,
2017
(“the regulations”)
[15]
and the tender document itself) was not complied with.
[16]
[37]
But
even if it was acceptable for the appellant to have used such a
process to have eliminated it from the race, so it went on,
nowhere
in the tender documentation was this risk evaluation stipulated as
objective criteria within the contemplation of regulation
11 (2) of
the PPPFA Regulations, that being the only recognized basis upon
which it could be bested in the final contest as the
tenderer “that
had scored the highest total number of points.”
[17]
This too in its view constituted a reviewable ground in terms of the
provisions of section 6 (2) (b) of PAJA.
[38]
It complained further that the appellant was
materially influenced by an error of law in relying on the process it
claimed it was
both prudently obliged and entitled to employ as a
basis to have ruled it out of the competition and, generally, that it
had made
its decisions flowing from the process arbitrarily and
capriciously, that they were irrational, unreasonably asserted, or
otherwise
unconstitutional or unlawful.
[39]
After having had sight of the review record and in
amplifying its papers, as it was entitled to, the first respondent
raised for
the first time the contention that the second and third
respondent’s bids should co-incidentally not have been declared
administratively
responsive in any event.
[40]
It
asserted that the BEC, and ultimately the Bid Award Committee (“BAC”)
that endorsed its findings, had committed a
reviewable irregularity
when it declared each of their bids administratively responsive.
[18]
[41]
The reason advanced by it for seeking such an
order, firstly concerning the second respondent, was essentially that
there had been
insufficient compliance by it with the PA-09 (EC):
List of Returnable Documents that formed part of the tender document
which listed
which documents it was mandatory to submit with the
bid.  The tender conditions stated that the fully completed
sectional
summary pages and the final summary page were required to
be returned with the tender document. It pointed out that paragraph 1

of the PA-09 (EC): List of Returnable Documents provided
unequivocally that “
Failure to
submit the applicable documents will result in the tender offer being
disqualified from further consideration”
.
[42]
It contended as a result that the decision of the
BEC to have declared the second respondent’s bid as
administratively responsive
was unlawful as the latter did not fully
complete the sectional summary page but had instead inserted a
globular total at the bottom
of each section.
[43]
The materiality contended for by this irregularity
is that the conditions with regard to the list of returnable
documents required
mandatory completion of the sectional summary
pages and the final summary page and, moreover, the BEC had held some
bidders strictly
thereto by disqualifying them in the early stage of
pre-qualification (underscoring the materiality of these conditions
certainly
as it pertained to them) yet had given the second
respondent a free pass by condoning its noncompliance for no special
reason.
This in the first respondent’s view constituted a
further ground for the decision awarding the bid to the second
respondent
to be declared unlawful and set aside.
[44]
The prejudice to it caused by the
appellant’s failure to have eliminated the second respondent at
this point meant that it
had unfairly had to contend with it as a
competitor in the final evaluation round and that the bid had as a
fact been awarded to
the latter as if its tender were responsive.
Additionally,
on the premise that the
third respondent’s bid had also as a fact been disqualified in
the final phase (or on the further
projected premise that it should
have been disqualified earlier), it pointed out that there ought in
any event to have been no
call for the appellant to have had any
resort to the objective criteria contemplated in regulation 11, as
such criteria applies
only where there are at least two (valid)
competing bids in contention at this juncture. Thus, so the
contention went, if the process
had been regular in respect of what
the BEC was supposed to have found instead, the award of the bid to
the first respondent should
have been a mere formality once it had
achieved the functionality threshold.
[45]
The
first respondent’s concern with the third respondent is that it
has a 6 GB CIDB grading limiting the value of the work
that could be
completed by it up to R20 000 000.00.
[19]
Although the third respondent was registered as a potentially
emerging enterprise which allowed it to submit bids for work in a

category higher than it was registered for at the time, in this
instance 7 GB, it clarified that this was only permissible when

certain preconditions are satisfied which were certainly not met as
far as it was concerned.
The
decision to accept its bid was thus reviewable on the basis that it
was not authorised by Regulation 25 (8),
[20]
or that it was influenced by an error of law in accepting that it
somehow qualified.
[46]
It
complained further that the third respondent had also failed to
submit a mandatory returnable document, namely a sectional summary

page in respect of “
Earthing
and Lighting Protection”
,
this requirement similarly being a material one.
[21]
[47]
As for the review grounds concerning the
application of the risk assessment, the first respondent in its
supplementary affidavit
repeated its complaint that the use of such a
process undertaken by or on behalf of the department was unlawful,
irregular and
contrary to the legislative framework applicable to
public procurement. It asserted that it did not form part of the
functionality
assessment (a postulate that the appellant accepted)
but contended that if it instead formed part of the award phase, it
was certainly
not capable of having been used as an objective reason
not to award the tender to the highest point scoring bidder.
[48]
Leave aside the fact that according to the
first respondent it had not at all been scored for price and
preference before its disqualification,
it bemoaned the fact that the
Department had in any event carried out a comparative risk assessment
to determine which of the three
standing bidders posed the least risk
rather than concluding that its own risk profile somehow presented an
“unacceptable
risk” to it on the basis of its supposed
risk eligibility criteria. In this regard it noted that the risk
assessment (assuming
it to be legally permissible) even on its own
terms was problematic in relation to its wording set out in Clause C,
in not meeting
the standard envisaged by regulation 11 (2) that
requires objective criteria to be relied upon to be stipulated in the
tender document.
[49]
Finally, it asserted that the tender process
fell woefully short of being procedurally or substantively fair in
the appellant’s
purported utilization of the risk assessment.
In this regard it had, for example, come to its conclusion
unfavourable to the first
respondent on the basis of a subjective
opinion.
[50]
It
transpired in this regard that on 18 September 2019, the Department
had instructed the principal agent (“BNM”) to
undertake a
technical risk assessment of the first and second respondents. (The
third respondent was not assessed together with
the first and second
respondents but had instead been subjected to an earlier technical
risk assessment together with Sinclaire
Gershan Troskie Construction
(“SGT”) and Blue Disa Trading 754 CC t/a Ulutsha Trading
(“Ulutsha Trading”),
both of who’s bids had been
declared administratively nonresponsive yet they were strangely
assessed together with the third
respondent for risk).
[22]
BNM prepared a report dated 27 September indicating that the second
respondent “appears to be the favourable bidder”
as
between it and the first respondent. It further advised that “From
the information available, it appears that the Contractor
(meaning
the first respondent) is NOT recommended by 50% of referees.”
[51]
By the appellant’s own admission such report
was merely a “guideline” and not binding on it. It
assured the court
that Mr. Ndwandwa, the Department’s own
project manager (who was said to have then still been in training
despite the Department’s
critical technical skill contended for
that made
it
rather
than the court better suited to determine any risk to it) had
undertaken his “own final risk assessment”.
But
in his report submitted to the BEC this purported evaluation by him
was not elaborated upon.  Instead, he merely
summarized the
subjective reflections of BNM, which had been especially qualified
with the proviso that its views were “
not
to be used for adjudication and appointment purposes as this is
subjective and based on opinions of respondents”
.
[52]
The alleged “
extensive
discussions”
that were supposedly
had concerning the risk that the first respondent’s bid posed
to the appellant during meetings of the
BEC and BAC were not
confirmed in evidence by any member of the committees neither was it
borne out by the minutes of the relevant
meetings.  Indeed, no
person on behalf of the Department ventured a reason at all why the
first respondent’s bid, on
its own merit, presented an
“unacceptable risk” to it by its acceptance as it were.
[53]
Mr. Ndwandwa perfunctorily filed a confirmatory
affidavit, without any elaboration of the role played by him in
conducing to the
decision made by the evaluation committees that the
first respondent’s bid should be disqualified, neither were the
photographs
he supposedly presented of sites worked on by the first
and second respondents, offered as a visual aide in making their
decision
and especially condemning the first respondent on the basis
of the technical criteria stipulated in clause C, put up in evidence.
[54]
The first respondent thus contended that the risk
assessment and its application was vague, arbitrary, unfair, entirely
subjective
(as confirmed by the principal agent) and irrational.
[55]
I should add with regard to the process that had
pertained in the tender process that other anomalies were also relied
upon by the
first respondent none of which are especially relevant
for present purposes.  I do however wish to highlight the first
respondent’s
complaint that the Department had instructed BNM
to undertake a risk assessment of SGT and Ulutsha Trading (together
with the third
respondent) on 7 August 2019, that is after their bids
had been declared administratively nonresponsive.  Leaving aside
the
arbitrary and irrational nature of that technical risk assessment
revealed in the review record, the first respondent especially

questioned how those tenderer’s bids could have progressed to a
technical risk assessment at the instruction of the Department
at all
since their bids had already been declared administratively
nonresponsive (even if they had tendered more beneficially in
respect
of price). If it was a mistake to have revived their bids, which the
appellant readily conceded, the question remains why
theirs were
singled out amongst all the other bidders who were similarly
disqualified for want of complying with mandatory pre-qualification

criteria.  A financial risk assessment by the appellant also
ensued in respect of the latter two bidders. Except to admit
the
mistake, the invitation to the appellant to explain how this had
happened was simply glossed over in the answering papers.
The
appellant’s case:
[56]
The appellant in its answering affidavit made no
bones about the fact that it had declared the first respondent’s
bid nonresponsive
on the basis of the technical risk assessment.
It asserted that it had done so only in the last stage of the tender
process
and on the basis that the requirements for the exercise
entailed objective criteria made allowance for in Regulation 11 read
together
with the provisions of section 2 (1) (f) of the PPPFA.
It denied that the evaluation was applied as a part of the original

functionality assessment.
[57]
As far as it was concerned the basis upon which
the risk determination would ensue for all responsive bidders (even
if there had
been only one in the final run) was unequivocally
heralded by the provisions of Clause C.  Although conceding that
the wording
set out in Clause C was not a model of precision, it
maintained that on a purposeful and constitutional interpretation of
the tender
Data that its objective, whilst coincidentally also
serving as a condition for the award of the tender, was formulated
with sufficient
clarity to be applied as objective criteria such as
is envisaged in regulation 11. Indeed, so the argument went, if it
were simply
a question of passing functionality and having an
acceptable price and preference rating it would not have been
necessary for it
to have included it in the tender Data.
It
further saw
no notional impediment or
objection to the risk assessment being applied to all qualifying
tenders, and not only the highest scoring
tender, as a further
requirement after scoring on price and preference, as a clearly
stipulated condition of the tender.
[58]
It
defended its utilisation of the tool to evaluate tenders on elements
of risk as one that was constitutionally compliant and necessary.

It
further
asserted that
the
risk evaluation was fairly undertaken and that it was not open to the
court to second guess either its requirements as to eligibility

stated in the tender Data, or its ability to recognise and measure
what it needed technically as far as it concerned the work to
be
performed or how it would uniquely evaluate what in its opinion might
pose a risk to it in accepting the tender.
[23]
[59]
It
added that its entitlement to subject all responsive tenders to the
risk assessment is underscored by the provisions of clause
F13.3 of
the Standard which urges it to: “
Accept
the tender offer, if in the opinion of the employer, it does not
present any risk.”
[24]
[60]
On the issue of the non-responsiveness of the
second respondent’s bid
, the
appellant readily conceded that the second respondent did not fully
complete the sectional summary pages of one of the mandatory

returnable documents, instead simply inserting a globular total at
the bottom of each section.
[61]
It however contended in this respect, as if the
element of materiality was there for its convenience only, that there
had been sufficient
compliance “
in
that at the foot of each page the amounts or the particular items
were recorded and the Department was in a position to evaluate
the
tender based on the price and other considerations”;
and
that “
(t)he instances where there
were disqualifications as a result of tenderers being non-responsive
cannot be compared with the completion
by the second respondent of
the sectional summary where there was sufficient compliance”
.
[62]
In
as much as there might have been any differences, it failed to take
the court
a
quo
into
its confidence regarding what those differences were in the
comparison to demonstrate exactly why it thought certain
disqualifications
mattered and why the non-compliance by the second
respondent with a mandatory requirement for qualification was
inconsequential.
[25]
[63]
Concerning the position of the third respondent,
it simply brushed aside the first respondent’s concern raised
that its bid
should have been declared nonresponsive especially for
want of compliance with the tender’s requirements under Part A
because
it had been disqualified on risk in any event.
The
reasoning and judgment of the court
a quo
[64]
The court
a quo
gave short shrift to the appellant’s pithy
explanation as to why it gave a special pass to the second respondent
despite its
accepted noncompliance with the mandatory tender
conditions regarding the returnable documents as follows:
“
[34]
the only reasonable inference that can be drawn from the fact that
the bid document, in particular PA-09, the list
of returnable
documents requires “
fully
completed sectional summary pages…
”
is
that it is precisely what was required. I'm therefore not persuaded
by submissions on behalf of the department (the appellant)
that there was sufficient compliance
by the second respondent and for this reason, its bid should have
been disqualified.”
[65]
Concerning the weightier complaint against the
third respondent that it had been
entirely
ineligible for consideration and should not have
gotten past the prequalification threshold, the court
a
quo
criticized it for its failure to
have provided any substantiation for its bald assertion that the
third respondent qualified to
be recognized as a 7 GB grading. It
properly held against the appellant its election not to respond to
the other grounds relied
upon as to why the latter’s bid should
not in the unique circumstances have been declared administratively
non-responsive
(or have been scored favorably for B-BBEE points) and
determined that the BAC’s contrary decision reached that its
eligibility
to have properly advanced to the award phase (where it in
fact competed with the first and second respondent in the final
round)
was undefendable.
[66]
As an aside, despite a difference of opinion
between the parties regarding when and how the third respondent’s
bid should
have fallen by the wayside, it was not seriously contended
before this court that the fact of the third respondent’s
exclusion
from
the running should not have happened.  The appellant’s
case in this regard was that the third respondent’s
bid had
been declared ineligible only in the final award phase when it failed
it on commercial risk.  The first respondent
argued however that
its bid was ineligible from the outset and should not have proceeded
beyond the qualification stage into the
final round.  The latter
submission was entirely relevant to its claim of prejudice by the
review ground(s) relied upon in
this respect.
[67]
The court
a quo’s
reasoning in the judgment regarding why it
concluded that the application of the risk assessment “as
applied by the department
was irregular resulting in the entire
process being unlawful” was however somewhat confusing.
[68]
On
the one hand it appeared to accept that it was permissible for the
appellant to have utilized the risk assessment as an award
criteria
but condemned it for having applied it wrongly as a subjective
comparison of bidders to determine which bidder posed the
least risk,
and/or because it did not apply it in a consistent manner in so far
as all responsive bidders were concerned.
[26]
[69]
On the other hand however it also found that “upon
a proper reading of the tender data”, it was “
evident
that the risk assessment was part of the pre-qualification criteria
that had to be used to evaluate the responsiveness of
the submitted
bids,”
evidently agreeing with
the first respondent that this should have been surpassed by each of
the present respondents achieving the
required functionality
threshold whereafter method 2 required them thence to be evaluated
further only in terms of price and preference,
sans
any consideration of risk to the employer.
[70]
The impression is created that the court
a
quo
meant to conclude that any concerns
of any risk to the employer should have been properly dealt with
under the mantle of functionality
(perhaps not surprisingly since by
Mr. Beyleveld conceded that the tender Data was not a model of
clarity) and the only consideration
going forward would, or should
rather, solely have been focused on scoring the responsive bidders on
the basis of price and preference.
In other words, there was in
its view no room to reconsider or re-evaluate functionality (despite
what Clause C in the tender Data
might have otherwise indicated) once
the functionality threshold had been surpassed.
[71]
It further appeared to accept the first
respondent’s version (in terms of which a dispute of fact
existed on the papers that
ought to have properly been resolved in
the appellant’s favour) that its decision to disqualify the
first respondent was
taken prior to the allocation of points to it
for price and preference.  This was evidently in its view in
itself irregular
and enough reason to set aside the decision
regarding the purported ineligibility of the first respondent’s
bid.
[72]
The conclusion that the tender process in effect
had to be set aside for this reason primarily (without the court
below having pertinently
pronounced on the issue of the application
of the impugned risk assessment or the concept of objective criteria)
led to an unsatisfactory
outcome.  In this regard, although the
court
a quo
had
discretely found that the second and third respondents’ bids
should have been disqualified, and by implication that the
tender as
a matter of formality should have been awarded to the first
respondent who was the highest scoring bidder, it ordered
that the
matter be referred back to the Department for
reconsideration
.
The
appeal:
[73]
The parties fairly agreed that whatever reasoning
the court
a quo
had
applied, the focus on appeal should rather be on determining whether
it had reached the proper outcome in the circumstances
by setting
aside each of the impugned decisions under scrutiny before it.
[74]
That
leaves the next consideration, which is whether the court
a
quo
was
correct to have granted the remedy it did, assuming that its primary
findings in respect of each of the impugned decisions were

correct.
[27]
[75]
In
its application for leave to appeal the appellant complained that a
rehearing was necessary because of the order of the court
a
quo
referring
the matter back to the Department for
reconsideration
in
terms of the provisions of section 8 (1)(c)(i) of PAJA.  The
appellant complained that this in itself caused a conundrum
to it yet
Mr. Beyleveld who appeared for the appellant had ironically contended
in argument before the court
a
quo
that
the only appropriate order for it to have made consequent to a
finding that the process was flawed was indeed to have referred
the
matter back to the Department for reconsideration.
[28]
[76]
It
was contended in the appeal however that the court
a
quo
,
in relegating the risk assessment to a pre-qualification
functionality evaluation, had left begging what purpose could be
served
by referring the matter back for
reconsideration
as
opposed to setting the tender process aside in its entirety exactly
because the permissibility and application of the risk assessment
had
not been pertinently addressed in the judgment and would still have
to be contended with in any rerun of the tender process
as it were.
It was asked, for example, whether the appellant had in terms of the
court
a
quo’s
unclear
judgment to now only adjudicate the first, second and third
respondents on price and preference (
sans
any
risk assessment), in which case, so it was theorized, the tender
would be awarded to the third respondent which had as a fact
come in
with the best price (risk aside).  It was also certainly not
clear whether the second and third respondents were to
be excluded in
a rerun, this as a result of the court
a
quo’s
conflicting
finding that because in its view the risk assessment was part of the
pre-qualification criteria to be used to evaluate
the responsiveness
of bids, it followed logically that: “
all
three bids (of the applicant, second respondent and third
respondents) should have been declared responsive as to
functionality”
(Sic).
Assuming their bids were to the contrary to be excluded, so the
argument went, it would follow that the first respondent
would be the
only remaining tenderer, in which event, the remitting would serve no
purpose.
[29]
[77]
Mr.
Beyleveld argued before this court against a remittal back to the
Department for reconsideration.  He contended that if
the
finding upon appeal was that the risk evaluation offends
constitutional imperatives and the provisions of the PPPFA and the

regulations thereunder,
[30]
it
would amount to the entire process being flawed and the only
appropriate order would be one similar to that which was upheld
in
Minister
of Social and Development and Others v Phoenix Cash and Carry
.
[31]
[78]
Mr.
Nepgen contended conversely that if this court was inclined to uphold
the court
a
quo’s
order
setting aside the award of the tender in effect under paragraph 1, a
substitution order might be more appropriate in the unique

circumstances as had been contended for by him in the court below,
because it was a foregone conclusion, so he submitted, that
the first
respondent ought to have been the only bidder left standing in the
final running who should further not have been disqualified
by virtue
of the impugned process.
[32]
[79]
Although one is tempted concerning this house of
cards to begin with the enquiry whether the appellant acted lawfully
by invoking
the risk assessment and in its factual application
thereof, it seems to me to be necessary to instead begin with what
happened
in the earlier responsive or qualification phase and more
particularly with reference to the appellant’s grounds of
appeal
that the court
a quo
erred, firstly in not finding that the second
respondent’s bid was responsive in all respects and, secondly,
in finding that
the third respondent’s bid should also have
been declared as administratively unresponsive.
[80]
In the concatenation of events, if the
administrative decision concerning the second respondent’s bid
is found to be inconsistent
with the provisions of PAJA, it will in
my view be unnecessary to consider the other review grounds relied
upon except to reflect
on what should instead have ensued in the
final award stage of the tender.  This is necessary to determine
the issue of prejudice
to the first respondent and how best to
ameliorate its effect in the circumstances.
[81]
That of course also requires a consideration of
the issue whether the third respondent’s bid properly passed
beyond the qualification
stage, otherwise the question of the
prejudice to the first respondent must be decided against the
background that the two of them
fairly competed with each other to
the end.
Either of these “decisions” (there was in
reality only one decision of the BEC on 26 July 2019 concerning which
bidders
met the pre-qualification criteria) had implications all on
their own. Interestingly though the first respondent’s case was

not that these “bad decisions” entirely vitiated the
tender proceedings even though it might be said that they are

symptoms on their own of a tainted process.
The
responsiveness of the second and third respondent’s bids
[82]
The primary question is this regard is whether the
second and third respondent’s bids complied with the
specifications of
the tender.
[83]
There
is no question that the evaluation and award of a tender constitutes
administrative action and is reviewable under PAJA, hence
the first’s
respondent’s principal reliance in the review application on
section 6 (2) (b) of PAJA to the effect that
the appellant had not
complied with a mandatory and material procedure or condition
prescribed by an empowering provision.
[33]
[84]
Section 217 of the Constitution prescribes that
the procurement of goods and services by an organ of state must be
carried out in
terms of the principles set out in section 217 (1) of
the Constitution, which reads:
“
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.”
[85]
Section 217 (3) requires that national legislation
must prescribe a framework for the implementation of a preferential
procurement
policy. The PPPFA is legislation pursuant to this
injunction.
[86]
An
“acceptable tender” is defined in section 1 of the PPPFA
as any “tender which, in all respects, complies with
the
specifications and conditions of tender as set out in the tender
document”.  In this regard the tender Data forewarned
that
any material non-compliance with the tender requirements would render
the bid non-responsive.
[34]
[87]
PA-09 (EC): List of Returnable Documents that
formed part of the tender documents listed which documents it was
mandatory for the
tenderers to submit with a bid.
[88]
Two of the documents required to be submitted
were:
88.1
“
Submission of
PA-36: Declaration Certificate for Local Production and Content for
Designated Sectors and Annexure C thereof”.
88.2
“
Fully
completed sectional summary pages and the Final Summary page with the
returnable tender document”
.
[89]
It is common cause as stated above that the second
respondent failed to complete the summary pages, reflecting only the
globular
totals of each section which the appellant brushed off as
immaterial because all it needed was the final total(s) to make its
decision
based on price, but this begs the question why the
requirement for fully completed sectional pages was stated as a
mandatory requirement
in the tender conditions in the first place
with a clear indication of what would ensue in the case of
non-compliance.  These
minimum standards, obviously to be fair
and equitable to all who wanted to compete for the bid, applied to
every tenderer alike,
and the requirement of transparency would
ensure for each tender hopeful that the Department would adopt an
even hand in applying
the standard consistently.
[90]
Although
we are presently concerned only with the requirement highlighted in
paragraph 88.2 above, one cannot ignore how the appellant
in fact
dealt with issues of noncompliance that it was bound to encounter in
its processes. The requirement for the submission
of PA-36 was not
qualified by the necessity that it be “Fully completed”
yet the record reveals that no fewer than
4 bidders were declared
administratively non-responsive because PA-36 was not “Fully
completed”. Two such bidders made
a reappearance after the
pre-qualifying stage and were subjected to a risk assessment as if
their disqualifications counted for
nothing. The appellant in its
answering affidavit however acknowledged that this had been a mistake
that should not have happened,
and which it ultimately
self-corrected, underscoring the importance of following the script
to the letter of the law.
[35]
[91]
When it came to the second respondent,
however it self-evidently treated its noncompliance differently than
other bid contenders
and therein lies the “rub”.  It
offered no insight into its reasoning process except to remark that
the second
respondent’s non-compliance was not material as far
as it was concerned.  It further failed to take the court into
its
confidence regarding why it could make an exception for the
second respondent’s shortcomings in its bid submission save to

offer the reason that it could determine the competitiveness of its
bid simply from the globular total(s) and that it was unnecessary
to
consider the line-item totals or absent figures.  As for the
explanation that the first respondent’s noncompliance
could not
be held up to a comparison of those bids that were in fact
disqualified by reason of noncompliance, the appellant did
not even
try to explain the reason for the differentiation.
[92]
In
Overstrand
Municipality v Water and Sanitation Services South Africa (Pty)
Ltd
[36]
the SCA considered the question whether our law permits condonation
of noncompliance with peremptory bid requirements as follows:
“
For
reasons that will become apparent, it is not necessary to resolve the
apparent differences in the decisions of this Court in
Millennium
Waste Management
(
Pty
)
Ltd v
Chairperson
,
Tender Board
:
Limpopo Province
and others
2008 (2) SA 481 (SCA) and
Dr
J S Moroka Municipality v Betram
(
Pty
)
Ltd
and another
2014 (1) SA 545 (SCA). This
Court, in
Millennium
, said at paragraph 17:
“
[O]ur
law permits condonation of non-compliance with peremptory
requirements in cases where condonation is not incompatible with

public interest and if such condonation is granted by the body in
whose benefit the provision was enacted.” (Citation omitted.)
Under
the heading “A flexible approach”, P Volmink
[37]
described the effect of the decision in
Moroka
Municipality
,
as follows:
“
[A]dministrative
bodies do not enjoy a blanket discretion to condone non-compliance
with mandatory bid requirements in all instances.
Rather, they have
the power to condone non-compliance with mandatory provisions only
when they have been afforded the discretion
to do so in the RFP
document or some other enabling provision.””
[38]
[93]
In
this regard the Standard
[39]
generically endorses some leeway as follows although the appellant
did not even address the issue whether it was competent for
it to
have condoned any noncompliance with mandatory requirements stated in
the tender Data:
[40]
“
F.3.8 Test for
responsiveness
F.3.8.1 Determine, after
opening and before detailed evaluation, whether each tender offer
properly received:
a) complies with the
requirements of these Conditions of Tender,
b) has been properly and
fully completed and signed, and
c) is responsive to the
other requirements of the tender documents.
F.3.8.2 A
responsive tender is one that conforms to all the terms, conditions,
and specifications of the tender documents
without
material deviation or qualification
. A
material deviation or qualification is one which, in the Employer's
opinion, would:
a) detrimentally affect
the scope, quality, or performance of the works, services or supply
identified in the Scope of Work,
b) significantly change
the Employer's or the tenderer's risks and responsibilities under the
contract, or
c) affect the competitive
position of other tenderers presenting responsive tenders, if it were
to be rectified.
Reject a non-responsive
tender offer, and not allow it to be subsequently made responsive by
correction or withdrawal of the non-conforming
deviation or
reservation.”
(Emphasis added)
[94]
In order to assess whether it was permissible for
the Department to have overlooked the second respondent’s
non-compliance
it is not clear how it was going to argue that the
competitive position of the first respondent (leave aside for the
moment the
question whether the third respondent should have been in
the running), would not be affected by letting its bid through into
the
next phase.  Perhaps it was the case that the second
respondent could  easily have been scored points for price on
the
nominal total bid price (in the anticipated scoring exercise) and
that the detail in respect of the line items would only have been

relevant when it came to a risk assessment under criterion 2 of
Clause C that the appellant contended for, but all of this is pure

speculation because the appellant failed to take the court
a
quo
into its confidence regarding why
it decided to be charitable towards the second respondent or to
explain what the differences were
in the comparison of each of the
other disqualified bids to demonstrate exactly why it thought that
those disqualifications mattered,
but that the non-compliance by it
with a mandatory requirement for qualification was inconsequential.
[95]
In
this instance, absent any cogent explanation offered by the appellant
for its different treatment of the bids that it rejected
as
non-compliant in comparison with the second respondent’s bid
that it passed on to the next stage of evaluation, it can
fairly be
assumed, based on the fact that the other tenders were as a fact
excluded for want of compliance with mandatory requirements,
that it
considered the noncompliance of a mandatory term of the tender
document material in itself. One need not strain to imagine
what the
purpose of the provision was, especially since it was stated to be a
mandatory returnable document fully completed that
each bidder was
required to particularize in the respects indicated.
[41]
[96]
Beyond
this the appellant did not even enter into a debate concerning the
possible sufficiency of substantial or adequate compliance
with what,
in conventional terms, is described as mandatory requirements.
[42]
[97]
As was emphasized on behalf of the first
respondent, and correctly noted by the court
a
quo,
the fact that the requirement
prepared by the Bid Specification Committee of the appellant required
“Fully completed sectional
summary pages” to be
submitted, must be interpreted to mean that this is in fact precisely
what it wanted and needed to justify
its purposes (and not only the
“Final Summary page”).  In that respect the second
respondent’s noncompliance
with a mandatory specification could
not be considered to be of a trivial or minor nature. Instead, its
tender was not an acceptable
one within the contemplation of the
PPPFA and did not “in all respects” comply with the
specifications and conditions
of tender as set out in the tender
document. Hence the first respondent properly laid its basis for the
challenge in terms of section
6 (2) (b) of PAJA.
[98]
I
accordingly conclude that the order of the court a quo setting aside
the BEC’s declaration that the second respondent’s
bid
was responsive was a correct one to have been made in all the
circumstances and that it was appropriate to deal with the adverse

consequences thereof by setting it aside and in effect directing a
rerun of the process against a construct that its bid is non

responsive.
[43]
[99]
The
situation of the third respondent was slightly nuanced but the
appellant failed to engage with the issue of its bid not being

responsive for the three reasons advanced by the first respondent at
all and the court
a
quo
was
in my view justified in deciding this aspect on the first
respondent’s version.  One would have expected an answer

even generally to allay the perception of a flawed process, but none
was forthcoming.
[44]
The
first respondent was confident to maintain however that the BEC’s
decision in this regard fell to be reviewed on
the basis that it
laboured under a misconception of the law regarding its contention
that the third respondent was eligible to
compete despite its lower
grading, and that it had also given it a free pass at its expense
regarding its material noncompliance
with a mandatory condition of
the tender.  On both scores the court
a
quo
correctly
found in my view that the BEC’s declaration that the third
respondent was a responsive bidder was reviewable and
also
appropriately fell to be set aside on the bases relied upon by the
first respondent in this respect.
[100]
Although the court
a
quo
extended its introspection into the
award phase, it was unnecessary in my view to have gone any further.
By necessary implication
the tender could not have been awarded to
the second respondent, and the third respondent should not have
passed the pre-qualification
stage.
[101]
That
having been said, it was not inappropriate in these peculiar
circumstances in my view for the court below to have referred
the
matter back to the Department for a rerun of the process to properly
determine the final outcome against the expectation of
the first
respondent now being the sole surviving responsive bidder, neither
should the order as it stands present any problem
in its
implementation.
[45]
Indeed, the fate of the second and third respondent’s being
ruled out of the competition is in keeping with the expectation

indicated at the foot of clause F.3.8 of the Standard enjoining the
employer itself to “
(r)
eject
a non-responsive tender offer, and not allow it to be subsequently
made responsive by correction or withdrawal of the non-conforming

deviation or reservation.”
T
here
ought properly therefore to be no claw back as it were from such a
premise.
[102]
I
cannot agree with Mr. Beyleveld’s contention that it would
somehow now be appropriate to direct that the tender process
be
started anew as if the
entire
process
was vitiated.  In my view the court below was alive to the
prejudice to the first respondent by such an order and intended
to
effectively vindicate its fair and administrative right violated by
the Department’s failure to have eliminated the second
and
third respondents from the competition when this was justifiably
required to happen.  Indeed, it behooves a court when
fashioning
an appropriate remedy pursuant to the provisions of section 8 of PAJA
to ensure that the remedy fits the injury. In
Steenkamp
NO v Provincial Tender Board, Eastern Cape
[46]
the Constitutional Court observed that the “
remedy
must be fair to those affected by it and yet vindicate effectively
the right violated. It must be just and equitable in the
light of the
facts, the implicated constitutional principles, if any, and the
controlling law….Ultimately the purpose of
a public remedy is
to afford the prejudiced party administrative justice, to advance
efficient and effective public administration
compelled by
constitutional precepts and at a broader level, to entrench the rule
of law.”
[103]
In
this instance the first respondent was the only party affected by the
impugned administrative action of allowing the second and
third
respondent’s to have passed into the evaluation phase.  That
was the injury primarily relied upon in the first
respondent’s
supplemented case.
[47]
For the
rest, the Department acted correctly in disqualifying the other
tenderers who similarly failed to meet the mandatory conditions
of
the tender. The remedy imposed by the court below put everyone on an
equal footing which is in my view the correct premise against
which
to rerun the tender process.
[48]
To require the process to commence anew (if the Department feels up
to it)
[49]
would conversely be
prejudicial to the first respondent who ought to have been reckoned
with as the only responsive bidder in the
final evaluation stage with
no competition from the second and third respondents who were treated
differentially and in breach
of its right to fair and just
administrative action.
[104]
The
question whether the first respondent's bid was lawfully declared
ineligible (in a 3 responsive bidders’ contest at the
end) is
an academic exercise. So too, the fact that objective criteria were
purportedly applied to justify the exclusion of the
first respondents
bid in a theoretical situation where it should have been the sole
standing responsive bidder does not serve any
purpose.
[50]
[105]
Concerning the application of the risk assessment,
how the court below perceived it and dealt with it and whether it in
effect excised
clause C in reckoning with its expected application,
is similarly in my view a hypothetical exercise. Indeed, most of the
grounds
of appeal based on its significance are framed as challenges
concerning what the court did not find, alternatively are based on

imagined conclusions, given the unclear judgement. The ground of
appeal premised in this respect on the supposed basis that the
court
found
that
the risk assessment was irregular is not worth pursuing, since it is
not clear how that conclusion was reached, but as stated
above it has
become a moot exercise. The parties at least appear to be in
agreement that the court’s factual finding that
the first
respondent was disqualified before being scored points for price and
preference was wrong, but that concession on its
own has no impact on
the matter.
[106]
That notwithstanding, it appears that something
needs to be said about the anticipated risk assessment that must
still ensue in
the reconsideration exercise.
The
risk assessment:
[107]
Being well aware that it is not the function of
the court to evaluate and award tenders, the comments made below are
purely for
guidance concerning the vexed issue whether the risk
assessment process suggested under Clause C is legally permissible
and how
the objective criteria contended for should be applied.
[108]
For
better or worse the risk “eligibility” requirements are
stated in the tender Data and their effect cannot simply
be wished
away, as inelegantly stated as clause C might be.
[51]
Mr. Beyleveld criticized the first respondent for not having sought
its excision from the tender Data, which otherwise must
be contended
with as a condition for “eligibility” (Sic) within the
stated terms set out in the tender Data, such as
they do not conflict
with the applicable legal framework, no more and no less.
[52]
[109]
In any event it was conceded on behalf of the
appellant that the utilization of the risk evaluation in the award
phase (having regard
to the unique statutory and regulatory public
procurement framework applicable at the time), can only be justified
within the context
of what regulation 11 of the 2017 regulations
provides in this respect.
[110]
Regulation 11 (2) states that:
“
If an organ of
state intends to apply objective criteria in terms of section
2 (1)
(f
) of
the Act, the organ of state must stipulate the objective criteria in
the tender documents.”
[111]
This the appellant contends the tender Data
purports to do.  I agree that it is unnecessary for the tender
document to utilize
the words “objective criteria”
themselves as long as objective criteria can be discerned from the
tender’s conditions.
[112]
Regarding the imperative for the risk assessment
portended in the tender Data being undertaken, Regulation 11 (1) of
the PPPFA regulations
provides that:
“
11.
Award of contracts to tenderers not scoring highest points.
—
(1)  A contract
may be awarded to a tenderer that did not score the highest points
only in accordance with section
2 (1)(f) of the Act.”
[113]
Section 2 (1) (f) of the PPPFA, in turn, reads as
follows:
“
(
f
)
the contract must be awarded to the tenderer who scores the highest
points, unless objective criteria
in addition to those contemplated
in
paragraphs
(
d
)
and
(
e
)
justify
the award to another tenderer;”
[114]
Paragraph 21 of the implementation guide to the
PPPFA Regulations reads:
“
AWARD OF CONTRACTS
TO TENDERER NOT SCORING THE HIGHEST TOTAL POINTS
21.1. A tender must be
awarded to the tenderer who scored the highest total number of points
in terms of the preference point systems
(price and B-BBEE points),
unless objective criteria in terms of section 2(1)(f) of the Act
justify the award of the tender to another tenderer.
21.2. If an institution
intends to apply objective criteria in terms of section 2(1)(f) of
the Act, the institution must state what
those objective criteria are
in the tender documents.
21.3. Functionality and
any element of the B-BBEE scorecard may not be used as objective
criteria.”
(Emphasis added)
[115]
All
of these provisions make it clear that it is intended by the
implementation of the adopted preference point system (putting
the
functionality criteria beyond the pale once this threshold has been
surpassed so that these considerations do not resurface
in the award
phase under the guise of “objective criteria” contended
for in regulation 11) should conduce to the highest
scoring bidder
being awarded the bid. The framework recognizes however that the
highest scoring tenderer may not be the successful
one, but such a
scenario can only pertain in highly constrained circumstances.
[53]
Thus, a tender ought to be awarded to the tenderer who scores the
highest points unless objective criteria (that have been
unequivocally
foreshadowed in the tender Data) other than the
criteria contemplated in paragraph (d) and (e) (not applicable for
present purposes),
justify the award to “another tenderer”
(who by necessary implication can only be a tenderer that is in the
final reckoning
together with the highest scoring tenderer). Although
it is not stated so plainly, I imagine that the second highest
scoring bidder
will be the next tenderer in the offing, in the usual
order of a runner up so to speak, as happens in practice.  The
framework
does not reference a second highest scoring bidder at all,
but it makes logical sense that if the highest scoring bidder is
disqualified,
that the second highest point scorer will be elevated
to first position by such elimination.
[54]
[116]
When section 2 (1) (f) of the PPPFA is read
together with what Clause C provides for in this instance (assuming
the criteria relied
upon can be construed as objective criteria), it
follows that the reason for not awarding the tender to the highest
scoring bidder,
which has after all duly achieved its place through
the application of the adopted method, must be one inherently related
to its
own risk profile.
The question must
ultimately be whether an objective reason exists to disqualify the
highest scoring tenderer’s bid based
on that risk profile.
[117]
In other words, the employer is not expected to
justify the award to the “other tenderer” it is entitled
in the constrained
circumstances to benefit as a runner up on a basis
that it is
more deserving
than the one it considers it necessary to
disqualify for whatever objective reason may pertain in the
circumstances, but rather
to justify why it cannot, by virtue of its
supposed objective reason, and despite that bidder being the highest
point scorer, award
the tender to it after all.
[118]
In my view there is no suggestion that it comes
down to a further contest between the remaining bidders to ascertain
which of them
in the pool poses the least risk.  Indeed, in my
view the runners up have no vested interest in the process at all
although,
as I suggest above, a disqualification of the lead point
scorer may elevate the second highest point scorer to first place.
[119]
The only compunction is to recognize the
highest scoring bidder unless there is a good, objective,
pre-disclosed, reason why the
employer cannot award the bid to it.
There is no obligation on the employer to award the bid to another
tenderer but it is authorised
by regulation 11 (1) to award the
contract to another tenderer (the word “may” is employed)
in a scenario where it
is justified in not giving it to the lead
scorer. It is it therefore irrelevant that there might be only one
responsive bidder
in the final evaluation stage. As the appellant
fairly suggested, if a good reason existed to disqualify the first
respondent for
risk on the assumption that its bid was the only one
that advanced to the final evaluation stage, that would be the end of
the
competition and the Department would have to issue out a fresh
bid invitation.
[120]
As
for the utilisation of a risk evaluation process such as the tender
Data in this instance makes provision for, our courts appear

generally to accept that these are permissible in the pursuit of
determining whether objective criteria might disqualify an otherwise

eligible bidder who has run the gauntlet to the end of the tender
process and expects to be awarded the contract as the bidder
scoring
the highest points.
[55]
There
can notionally be no objection to an employer requesting an
evaluation of all the bidders remaining in the final stage of
the
tender process, simply as a matter of convenience to it, but this
should not provide a basis for any comparison of risk profiles.
That
would be entirely inimical to the points and preference post
functionality methodology employed.
[121]
By its own concession the appellant is not here
concerned with a last minute eligibility leg. The winning bidder
would have jumped
that hurdle earlier in the process and come to the
finishing line with the expectation that its status as the highest
point scorer
ought generally to guarantee it its win.
[122]
The ultimate objective of looking for any
unacceptable
risk
in the risk evaluation seems to me to set the bar for
disqualification very high. Indeed, it would be difficult in practise

for the Department on the basis of what Clause C provides to trounce
the highest point scorer.
Conclusion
[123]
In the premises there is no reason not to uphold
the court
a quo’s
orders.
[124]
The first respondent was careful in framing its
papers in the review application not to seek an order setting aside
the entire tender
process, but to focus instead on challenging the
bad decisions that in the end conduced to the wrong outcome to its
considerable
prejudice.
[125]
There is no merit in the applicant’s
argument that a reconsideration against this peculiar background is
impossible.
To the contrary, the remedy is the best fitting
one.
[126]
In the result I make the following order:
1.
The appeal is dismissed with costs.
2.
The reconsideration envisaged by paragraph 2 of
the order of the court
a quo
shall be premised on the basis that:
2.1
the bids of the second and third respondents are
administratively non-responsive; and
2.2
the first respondent is deemed to be the only
remaining tenderer in the evaluation stage.
B
HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE,
B
MAJIKI
JUDGE
OF THE HIGH COURT
I
AGREE,
I
BANDS
JUDGE
OF THE HIGH COURT
DATE
OF APPEAL
21
November 2022
DATE
OF JUDGMENT
3
August 2023
Appearances:
For
the Appellant:
Mr.
A Beyleveld SC instructed by The State Attorney, Gqeberha (ref.
0525/2020/4) care of Whitesides Attorneys, Makhanda (ref.
Mr.
Barrow/C12937)
For
the First Respondent:
Mr.
J Nepgen instructed by Joubert Galpin & Searle c/o Huxtable
Attorneys, Makhanda (Ref. Mr. O Huxtable)
[1]
This
conclusion follows properly upon an application of the
Plascon-Evans
Rule
referred to
in
Plascon-Evans Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 631 I – 635 C.
[2]
[2][2]
The standard is issued in terms of sections
4 (
f)
, 5 (3) (
c
) and 5 (4) (
b
) of
the
Construction Industry Development Board Act 38 of 2000
read
with Regulation 24 of the Construction Industry Development
Regulations, 2004 (as amended) issued in terms of section
33. The
Standard for Uniformity in Construction Procurement was first
published in Board Notice 62 of 2004 in
Government
Gazette
No
26427 of 9 June 2004. It was subsequently amended in Board Notice 67
of 2005 in
Government
Gazette
No
27831 of 22 July 2005, Board Notice 99 of 2005 in
Government
Gazette
No
28127 of 14 October 2005, Board Notice 93 of 2006 in
Government
Gazette
No
29138 of 18 August 2006, Board Notice 9 of 2008 in
Government
Gazette
No
30692, of 1 February 2008, Board Notice 11 of 2009 in
Government
Gazette
No
31823 of 30 January 2009, Board Notice 86 of 2010 in
Government
Gazette
No
33239 of 28 May 2010 and Board Notice 136 of 2015 in Government
Gazette
38960
of 10 July 2015.
[3]
This must however be read together with the corresponding clause
F.3.11.1 of the Standard which apart from requiring the employer
to
indicate which method is to be applied, enjoins it in evaluating
tender offers to “
evaluate
them using the tender evaluation methods and associated evaluation
criteria and weightings that are specified in the
tender data.”
[4]
These
sub-provisions relate to the recognition of specific goals to be
outlined in a preferential procurement framework that are
not of
relevance for present purposes.
[5]
South
African National Road Agency Limited v The Toll Collect Consortium &
Another
[2013]
4 All SA 393
SCA
(“Tolcon”).
[6]
The four decisions, although discrete, are inextricably
interrelated.
[7]
In
the early outlining of what its case was, the appellant's treatment
of the second and third respondents as responsive bidders
was not in
issue.  Indeed, the premise was initially accepted by the first
respondent that both had fairly achieved the
functionality
threshold.
[8]
It
was not less expensive than the third respondent’s bid but the
first respondent was happy to theorize that the third
respondent was
out of the race by this point, having been eliminated by the same
risk assessment that it took issue with as being
legally
impermissible
vis-à-vis
itself.
[9]
The first respondent achieved a functionality score of 78%. The
second and third respondents achieved scores of 64% and 60%
respectively, both considerably lower than the first respondent.
All
three were thereafter scored for price and points, which put the
third respondent in the lead. The third respondent fell out
of the
race due to the same impugned process that the first respondent
complained was unfairly utilized to disqualify it.
[10]
The
appellant referenced four stages in the tender process: 1) the
checking on pre-qualification items, 2) the functionality
evaluation, 3) the evaluation on price and preference points, and 4)
the determination of risk.
[11]
The
technical risk assessment in respect of the third respondent was
carried out earlier than that of the first and second respondents

but not the commercial risk one.  The ultimate date when the
third respondent was disqualified is unclear but it appears
from the
record of decision that the third respondent was regarded as the
highest scoring bidder among the three of them so must
have been
reckoned in as a responsive bidder until the end.
[12]
[2022]
1 All SA 892
(KZD) at para [17].
[13]
See
in this regard
Rainbow
Civils CC v Minister of Transport and Public Works, Western Cape
(21158/2012)
[2013] ZAWCHC 3
(6 February 2013) in which the court held that
functionality criteria must play a role also after the award of
points for price
and preference. In other words, it must serve as
both qualification and award criteria. A controversy regarding the
import of
the 2017 Regulations is also discussed in
Minister
of Finance v Sakeliga NPS (previously Afribusiness NPC) and Others
2022
(4
)
SA 362 (CC) but relates instead to the use of pre-qualification
criteria in the procurement process to achieve the Constitution’s

transformational goals. In any event the order of the SCA in
Afribusiness
NPC v Minister of Finance
2021
(1) SA 325
(SCA)
declaring
that the Preferential Procurement Regulations, 2017 are inconsistent
with the
Preferential
Procurement Policy Framework Act 5 of 2000
and
are invalid was upheld by the Constitutional Court. The ancillary
order of the SCA that the declaration of validity was suspended
for
a period of 12 months from the date of its order expired on 16
January 2023.
[14]
The challenge may still require reflection when considering a
challenge to the award of a tender under the 2017 Regulations,
but
in this instance it is really an academic exercise given our
decision herein.
[15]
GNR.32 of 20 January 2017:  Preferential Procurement
Regulations, 2017 (
Government
Gazette
No.
40553), since repealed by GN 2721 published in
Government
Gazette
47452 of
4 November 2022.
[16]
See in this respect section 6 (2) (b) of PAJA.
[17]
According to the record of decision it was not in fact the highest
scoring tenderer amongst the three responsive bids.
The third
respondent scored best but the appellant seemed happy to theorize
that the end contest was between the first and second
respondents,
with the former scoring the highest points.
[18]
The
provisions of section 6 (2) (b) of PAJA were also relied upon in
this respect.
[19]
The
value of the bid in this instance exceeded R20 million.
[20]
Construction Industry Development Regulations, Government Notice GN
692 of 9 June 2004 published in Government Gazette No. 26427.
[21]
This
second ground that the first respondent relied upon enveloped the
first. Its primary contention was that the third respondent
had been
entirely ineligible to have competed for the bid. It raised in its
supplementary affidavit a further issue that the
third respondent’s
BBBEE affidavit was also invalid and that it was thus not entitled
to have been allocated points for
BBBEE, an aspect that the
appellant simply avoided dealing with in its answering affidavit at
all.  The appellant purported
to gloss over even the first
respondent’s primary concern as an inconsequential one and of
mere academic interest since
the third respondent’s bid had in
any event been disqualified.
[22]
The
appellant volunteered this information in its answering affidavit
claiming it to have been a mistake.  Evidently it seems
that
this trio of bidders (including the third respondent) had tendered
more beneficially in respect of price.  Why the
rules were bent
to permit the two nonresponsive tenders back into the contest
remains a mystery, but the taint in respect of
SGT and Ulusha
Trading at least was self-remedied.  From the review record it
appears that these five tenderers were thereafter
subjected to the
commercial risk assessment all together.
[23]
See
Dr
JS Moroka Municipality & Others v Betram (Pty) Ltd & Another
(
2014
(1) All SA 545
(SCA) at para 10, read with the orbiter remarks in
Millennium
Waste Management
Supra
at para 16,
where
the SCA held that: “
It
was for the municipality, and not the court to decide what should be
a prerequisite for a valid tender…”
Also,
in respect of the unique work cut out for bid evaluation committees,
our court apply due deference. (
Tolcon
at
[27]).
[24]
However, see paragraph 24 above concerning the corresponding
provision of the Standard that was instead included in the tender

Data.   It is further notable that there is a significant
difference between “any risk” and an “unacceptable

risk” postulated in Clause C under the risk eligibility
criteria. See paragraph 13 above regarding how that conflict ought

to be resolved.
[25]
This must be seen against the background that it was not consistent
in its approach regarding the assessment of nonresponsive
tenders,
especially since it purported to give
SGT
and
Ulusha
Trading
another
go at it as it were. As indicated above, however, the mistake in
respect of the latter two tenderers was noted and corrected.
[26]
Although
it is an academic exercise I consider this to be a persuasive reason
why the risk assessment was not applied as Clause
C forewarned it
would be.  In any event one is still left wondering what about
the purported risk determination justified
the Department in
concluding that an acceptance of the first respondent’s bid
posed an
unacceptable
risk
to it on its own merit.
[27]
As
indicated elsewhere, although these were pleaded discretely, each
decision was entirely interrelated.
[28]
See paragraph [49] of the judgment.
The
order as it stands ought to have caused consternation for the first
respondent as well but Mr. Nepgen who appeared for the
first
respondent contended that it had been unnecessary for it to cross
appeal because the effect of the remitting together with
the other
orders granted should in effect have had as a result that his client
would have been the only remaining bidder who
was legally eligible
to be awarded the contract. From the appellant’s perspective
however the elephant in the room, being
the issue of legal
permissibility of the risk determination as an eligibility criteria,
will continue to vex the parties going
forward.
[29]
This
comment is in conflict with the court's orders setting aside the
BEC's findings that the 2nd and 3rd respondents’ bids
were
administratively responsive, meaning that they should not have
proceeded to a functionality evaluation.
[30]
He
made this suggestion well knowing that the first respondent had not
sought to set aside the tender documentation or focused
primarily on
the fact that the criteria had been vaguely framed in the tender
document but had instead relied on the fact that
the actual
utilisation of the risk assessment was vague, arbitrary and
irrational and that the process of evaluation was unfair
and biased.
[31]
[2007] SCA 26 (RSA) 189/2006 & 244/2006 at par 4 under par (c)
of the order there referred to. In that matter the order concerned

(which was subject to confirmation on the return date) entailed that
the employer would invite fresh tenders for the supply and
delivery
of food hampers should it have
decided
to pursue
such
a service going forward in terms of a National Food Emergency Scheme
and to take cognizance of the court’s judgment
in that event
in forming new tender terms and conditions.
[32]
According
to the first respondent’s contention, it would (by the
elimination of the second and third respondent as nonresponsive

tenderers in the first phase) be deemed to be the only tenderer left
in the final evaluation phase.
[33]
Steenkamp
N.O. v Provincial Tender Board
EC
,
2007 (3) SA 121
(CC) at par 21
.
Millenium Waste Management (Pty) Ltd v Chairperson, Tender Board,
Limpopo Province & Others
2008
(2) 481 (SCA) at par 4.
[34]
In
relation to the documents listed in paragraph 1 of PA-09 (EC): List
of Returnable Documents, the tender recorded especially
that
“
Failure
to submit the applicable documents will result in the tender offer
being disqualified from further consideration”
.
[35]
Included
in the record of decision is an internal memorandum addressed by the
BEC to the Regional BAC dated 22 October 2019 (at
page 1638 of the
record) which appears to have been written in response to a request
by the BAC to review the nonresponsive bids
of Alfdav Construction
CC and Ulutsha Trading which had initially been disqualified because
“PA 36 not fully completed”
ahead of finally accepting
its recommendation to award the bid to the second respondent.
The BEC’s approach is commendable
in that it advises the BAC
that its own strict and uniform approach of “applying the
approved procurement strategy”
should prevail even though in
that instance the bidders might have been misdirected regarding what
was required of them to fill
out in tables on the forms supplied and
despite the fact that the detail missed could be supplemented or
sourced from other documents.
The BEC was clearly not in that
instance persuaded that it was proper that their bids be
deemed
to
be complete.
[36]
[2018]
2 All SA 644
(SCA).
[37]
P
Volmink, “
Legal
Consequences of Non Compliance with Bid Requirements
”
(2014)
1
African
Public Procurement Law Journal
41,
49. See also paras [16] and [18] of
Moroka
Municipality
.
[38]
Supra
,
at par [46].
[39]
The only reference in the tender Data to this corresponding
provision is the qualification that “responsive tender”

and “acceptable tender” shall be construed to have the
same meaning.
[40]
In
the ordinary course an employer’s ability to condone a failure
to comply with a peremptory tender condition is dependent
on a
proper construction of the documents forming part of the bid
invitation but this court was not directed to any such import.

To the contrary, Mr. Beyleveld contended that the scenario in which
the Department was faced and the decision it took to overlook
the
fact that the second respondent’s bid did not have fully
completed sectional summaries was akin to the waiver of a
suspensive
condition.  This is however in my view completely anathematic
to a public tender process.
[41]
One
can also speculate that a tender scored on price would require the
bidder to show how the end total is made up to determine
if the
price that it boasts as being the best in the competitive bidding
process is actually sustainable with reference to the
summarised
parts.
[42]
Overstrand
Municipality
,
Supra
,
at [50]. A court is enjoined to guard against invalidating a tender
that contains minor deviations that do not materially alter
or
depart from the characteristics, terms, conditions and other
requirements set out in tender documents.
In
this regard see C Hoexter
Administrative
Law in South Africa
(2ed)
(2012) at 292–295 and P Bolton “Disqualification for
non-compliance with public tender conditions” (2014)
17(6)
Potchefstroom Electronic Law Journal 2313, 2344.
[43]
See
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others
2014
(1) SA 604
(CC) at para 25 where the court held that:
“
Once
a ground of review under PAJA has been established there is no room
for shying away from it.  Section 172 (1)(a) of
the
Constitution requires the decision to be declared unlawful.
The consequences of the declaration of unlawfulness must
be dealt
with in a just and equitable order under section 172 (1)(b).”
[44]
I
t
appears that the Department was seduced by the low price of the
third respondent’s bid which it ultimately rejected on
the
basis that it posed a commercial risk to accept it.
[45]
Mr.
Beyleveld fairly pointed out that the first respondent did not file
a cross appeal against the remedy the court below thought
was just
and equitable to make in the unique circumstances of the matter.
[46]
2007
(3) SA 121
(CC) at paragraph [29].
[47]
The
appellant’s earlier concern had been with the application of
the risk assessment in a reconsideration scenario, I assume
because
it was from its perspective unclear how it would deal with this in a
rerun of the process.
[48]
The
scenario that pertains here is the converse of the situation that
applied for example in both
Tekoa
Consulting Engineers (Pty) Ltd v Alfred Nzo District Municipality
and Others
[2022]
3 All SA 892
(ECG) at [93] and
Spec
Joint Venture v The Minister: Department of Water and Sanitation and
two others
(Gqeberha
Case no. 2806/2022) at [34].  In this instance the Department
treated the second and third respondents differentially
from
everyone else’s.
[49]
One
gleans the impression that it has lost its taste for the project
proceeding and might not, given the lapse of time and budgetary

constraints, want to proceed if it were up to it.
[50]
The first respondent contended in this regard that the provisions of
regulation 11 are not of application unless there is more
than one
valid bid still in contention.
[51]
Apart from the apparent overlap with functionality criteria I
mention, for example, that “
unacceptable
risk
”
is
not defined and more importantly there is a failure in the tender
Data to record what the objective standard (scope or measure)
is
that will be used to determine whether a bid presents an
“
unacceptable
risk
”
to
the Department.
[52]
The
BEC and BAC would do well to heed the warning of the Constitutional
Court in
Allpay
,
Supra
,
at [88] – [90] regarding the clarity of administrative action
that is required.  See also the dictum in
Tekoa
Consulting Engineers
,
Supra
,
at [57] where the court noted that the conditions of tender must
spell out, clearly and unambiguously, what is required of a
bidder
:
“There must be no vagueness or lack of clarity about what
constitutes the “rules of the game,” so to speak.”
[53]
See in this regard “
An
analysis of the criteria used to evaluate and award public tenders”
by Prof Pheobe
Bolton 2014 (1)
Speculum
Juris,
who
has helpfully analysed the relevant reported judgements pertaining
to the issue of “objective criteria” and its
application
in practice.
[54]
This
is consistent with the present tense utilised in section 2 (1) (f)
of the PPPFA as follows: “…
the
contract must be awarded to the tenderer who
scores
the
highest points…”
[55]
See
Wattpower
Solutions CC
,
Supra
,
for example.  The issue is not with a due diligence exercise as
long as the objective stays within the bounds of regulation
11.