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[2021] ZAGPPHC 391
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Gijima Holdings (Pty) Ltd and Others v South African National Roads Agency SOC Limited and Others (57952/2020) [2021] ZAGPPHC 391 (17 June 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 57952/2020
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
17/06/2021
In
the matter between:
GIJIMA HOLDINGS (PTY)
LTD
AFRICAN TECHNOLOGY
OPERATIONS AND MAINTENANCE (PTY) LTD
SICE SOUTH AFRICA
(PTY) LTD
First applicant
Second applicant
Third
applicant
and
SOUTH
AFRICAN NATIONAL ROADS AGENCY SOC LIMITED
TOLCON
GROUP (PTY) LTD
NETRONIX
(PTY) LTD
First
respondent
Second
respondent
Third
respondent
JUDGMENT
van
der Westhuizen, J
[1]
The applicants were unsuccessful in respect of tender invitations
called by the first
respondent. The applicants participated in the
tender proceedings as a Joint Venture. The applicants apply for the
review and setting
aside of the decision by the first respondent to
exclude the applicants during the second envelope process from
continuing to participate
in the tender process and the award of the
said tenders to the second respondent.
[2]
The second respondent submitted the only other responsive tender;
other participants
were considered to be non-responsive following on
the first envelope consideration. The third respondent was the holder
of the
tender that would have come to an end during December 2019.
[3]
The continuation of the third respondent’s duties flowing from
a previous tender
award in respect of same regions was initially
extended until December 2020. In an application for the review and
setting aside
of the award of the tenders to the second, and by
agreement, this court on 17 November 2020 granted a further
extension.
[4]
The first respondent, the South African National Road Agency SOC
Limited (SANRAL),
called for the submission of tenders in respect of
different regions. The relevant regions to this matter were:
(a)
The Western Cape – Tender No. […];
and
(b)
Gauteng – Tender No. […].
[5]
The combined value of the two mentioned tenders is approximately
R1,2bn. Both the
said tenders were awarded to the second respondent.
[6]
I do not intend to re-state the legal framework within which SANRAL
is to operate.
That has been traversed in many precedent setting
judgments and is common cause. It will suffice to state that the
first respondent
is a creature of statute (the South African National
Roads Agency Act, No. 7 of 1998) and is bound by various statutory
requirements,
prescriptions and guidelines, the least of which is the
Public Finance Management Act, 1 of 1999 (the PMFA). SANRAL acts
through
its Board of Directors which has delegated some of its powers
to various officials and committees of SANRAL. The Board is the
accounting
authority.
[1]
Nevertheless, the Board retains the right to final consideration of
bid documents lodged. It does not merely rubberstamp any
recommendations
by a delegated subcommittee in respect of any award
of a tender. Furthermore, in terms of the provisions of section 51 of
the PMFA,
the Board is authorised to initiate internal and external
audit reviews in respect of all tender invitations, as well as other
risk assessments in the supply chain management environment. The role
played by each of the delegated subcommittees in a tender
process is
common cause.
[7]
As recorded, the tender process was conducted in a two envelope
process. The first
envelope process centred on a so-called technical
or functional responsive evaluation. The second envelope process
focusses upon
the price and B-BBEE status of the bidder. The first
envelope evaluation process is a closed evaluation. The second
envelope evaluation
process is an open enquiry. At the commencement
of the second envelope enquiry, the tender participants were made
privy to the
other tender participants’ tenders. The evaluation
in the second envelope enquiry is conducted,
inter
alia
, in terms of the Preferential
Procurement Policy Framework Act, No. 5 of 2000 (PPPFA).
[8]
The applicants bemoan the conduct on the part of the board of the
first respondent
relating to their tender submission that resulted in
the exclusion of the applicants’ tender submission from further
consideration.
The complaint being that the applicants’ tender
was considered to be non-compliant with tender specifications. The
applicants’
non-compliance was considered to be material. In
the light of the alleged material non-compliance with the tender
specifications,
SANRAL, during the second envelope enquiry,
considered the applicants’ tender submission to be
non-responsive, and thus to
be excluded from further consideration.
[9]
The primary reason provided to the applicants for the exclusion of
their bid was the
non-compliance with the pre-qualification criteria
in respect of the lack of proof of B-BBEE contributor status level
due to the
invalid sworn statement.
[10]
The applicants submitted that for the following, the first
respondent’s exclusion of the
appellants’ tender
submission was unlawful and hence subject to a review and setting
aside of that decision or determination.
(a)
The applicants are of the view that they
duly complied with the tender specifications;
(b)
Even if there was a non-compliance with the
tender specifications, it was non-material;
(c)
The first respondent had a discretion to
condone any non-compliance with material requirements of the tender;
(d)
In any event, the first respondent’s
disqualification of the applicants’ tender submission was
unlawful and procedurally
unfair;
(e)
The award of the two tenders to the second
respondent was unlawful.
[11]
The bone of contention appears to be the approach taken by SANRAL in
respect of an “affidavit”
submitted on behalf of the
second respondent to prove its B-BBEE status. SANRAL considered that
document not to be in accordance
with the requirements stipulated for
a sworn statement to be “valid”. The approach on the part
of SANRAL in respect
of this contested document
inter
alia
formed the basis of the exclusion
of the applicants’ tender bid from the second envelope enquiry.
SANRAL’s aforesaid
approach was hotly contested by the
applicants.
[12]
In terms of its statutory obligations, SANRAL is obliged to procure
services in accordance with
a range of procurement prescripts,
including section 217 of the Constitution. Also applicable are the
B-BBEE codes issued in terms
of the Broad-based Black Economic
Empowerment Act, 53 of 2003 (the B-BBEE Act).
[2]
All procurement prescripts are binding upon SANRAL.
[3]
[13]
The B-BBEE contributor status level may play different rolls in a
tender process. It may either
relate to pre-qualification criteria to
determine eligibility to submit a tender, or may only be relevant in
respect of a points
allocation. Non-compliance with the stipulated
requirements may have different effects in respect of which of the
two scenarios
are be determined. In the present instance, that much
is clear from a purposive reading of clauses 4 and 5 of the present
Tender
Data specifications of the Tender Invitation.
[4]
[14]
Prior to the call for tenders that are the subject of this review,
the first respondent issued
an Advance Notification of Future
Tenders. That Notification advised prospective bidders of,
inter
alia,
the B-BBEE status requirements of the envisaged tenders. The
requirements of the two tenders in this matter were largely similar,
especially in respect of the B-BBEE status requirements.
[5]
[15]
The tender specifications in both instances required at least a
B-BBEE status level 4 contributor;
the T1.1 Tender Notice and
Invitation to Tender specified that only bidders of a contributor
status of levels 1, 2, 3 and 4 were
to be eligible to submit a bid.
In this regard, the second applicant contends that it in fact has a
B-BBEE level 1 contributor
status and thus clearly complied with the
tender specification requirement. It is this status claim that is the
contentious issue
in this review application.
Inter
alia,
a further pre-qualification was set that the prospective bidder was
to be registered on the National Treasury Central Supplier
Database.
[6]
[16]
Where there is non-compliance with the B-BBEE requirements set in the
tender specifications,
in particular in respect of the
pre-qualification requirement relating to eligibility to submit a
tender bid, that bid is considered
an unacceptable bid.
[7]
In contrast to the former consequence, regulations 6(4) and 7(4)
under the Preferential Procurement Act stipulate that failure
to
submit proof of B-BBEE status level contribution, or where the bidder
is a non-compliant contributor to B-BBEE, such bids may
not be
disqualified. It is to be noted that the provisions of regulations
6(4) and 7(4) only apply where the specified B-BBEE requirements
are
not in respect of the pre-qualification requirements, but merely a
requirement in respect of a points allocation.
[17]
In the present instance, the specified B-BBEE requirements were set
in respect of the pre-qualification
requirements relating to
eligibility to submit a tender bid,
[8]
as required by the Preferential Procurement Act Regulations, and
which requirements were repeated in clause 4.1.1(f) of the Tender
Procedures of both tenders. Consequently, non-compliance with the
specified B-BBEE requirements would result in a bid being excluded
from further consideration.
[18]
It is common cause that the Tendering Procedures document (including
the Tendering Procedures
Supplement) are to be read with the Standard
Conditions of Tender.
[9]
[19]
The relevant eligibility criteria set in the Tender Data portion of
the Tender Procedures (T1.2)
are recorded in clause 4.1.1 of thereof.
In summary these relate to:
(a)
key personnel;
(b)
declaration: Environmental, Social, Health and Safety past
performance;
(c)
financial capabilities;
(d)
National Treasury Central Supplier Database;
(e)
local content;
(f)
criteria for preferential procurement.
The following is
specifically recorded under clause 4.1.1(f):
“
Only
tenders with a B-BBEE contributor status level of 1, 2, 3, or 4, are
eligible to tender.
The tenderer shall
submit a valid B-BBEE certificate in compliance with Tender Data
5.11.8 as proof of eligibility.
Failure to submit a
B-BBEE certificate at the time of tender closing shall render the
tender non-responsive and the tender shall
not be considered.”
[20]
It follows that non-compliance with the criteria in respect of a
B-BBEE certificate as stipulated,
[10]
will result in the tender bid being excluded from further
consideration.
[21]
It is to be noted that beneath the tender criteria relating to
eligibility,
[11]
the following
appears in bold type:
“
Failure
to satisfy the eligibility criteria is a breach of the Conditions of
Tender and as such, may result in a non-eligible tender.”
It is upon this passage
that the applicants have pinned their colours to the mast.
[22]
Albeit that the quoted passage in bold appears to provide a general
discretion in respect of
non-compliance with the eligibility
criteria, clause 4.1.1(f) clearly requires that a valid B-BBEE
contributor status level certificate,
which is to be verified, has to
be submitted prior to the closing date of the Tender. No discretion
is provided, nor permitted,
in respect of non-compliance of that
requirement. The tender bid is rendered non-responsive and shall not
be considered. That effect
is supported by the initial eligibility
requirement that only bidders with a B-BBEE contributor status level
of at least 4 may
submit a tender. Furthermore, the B-BBEE
contributor status level has to be valid as at the tender closing
date. If compliance
with the submission of a valid B-BBEE contributor
level status certificate could be made at a later stage during the
second envelope
enquiry, that would defeat the purpose of the initial
eligibility requirement of a specific B-BBEE contributor status
level. It
would further render the requirement of pre-qualification
eligibility senseless and of no consequence, i.e. irrelevant and
superfluous.
[23]
The requirement of submitting a valid B-BBEE contributor status level
prior to the closing date
of the Tender Invite serves a specific and
necessary purpose; that is to comply with the statutory requirements
to address and
advance participation by previously disadvantaged
persons or entities. That much is common cause, if not, it should be.
[24]
In a second clause 4.1.1 bearing a heading “Functionality
Criteria”, criteria are
set relating to Functionality. That
functionality criteria specifies a minimum 70% threshold to be
achieved, failing which the
tender will be considered non-responsive.
The functional score is then recorded. That detail is not relevant
for present purposes
as it is common cause that both the applicants
and the second respondent were found to be functionally responsive in
their respective
bids.
[25]
From the provisions of clause 4.1.1(f) of the Tender Data
specifications the following requirements
in respect of proof of
B-BBEE contributor level status are gleaned:
(a)
a B-BBEE contributor status level
certificate, duly verified, is to be submitted;
(b)
the certificate must be valid;
(c)
the certificate must be submitted prior to
the closing date of the Tender Invite;
(d)
the certificate must be compliant with the
provisions of Tender Data 5.11.8.
[26]
The aforesaid proof in respect of B-BBEE contributor level status to
be submitted is to be read with
clause 5.11.8 of the Tender Data
specifications. That clause prescribes the format of the proof that
is to be submitted. First
and foremost, it is required that a B-BBEE
Verification Certificate is to be submitted. That certificate shall:
(a)
be an original or an original certified copy of the original;
(b)
have been issued by a verification agency accredited by the South
African National Accreditation
System (SANAS);
(c)
be in the form of a sworn statement (accompanied by an audited
financial statement
or Management Account on the latest financial
year) or a certificate issued by the Companies and Intellectual
Property Commission
in the case of an Exempted Micro Enterprise (EME)
if issued in accordance with the amended Construction Sector Codes
published
in Notice 931 of Government Gazette No 1287 on 1 December
2017 by the Department of Trade and Industry; and
(d)
be valid at the tender closing date; and
(e)
have a date of issue less than 12 (twelve) months prior to the
original advertised tender
closing date (see Tender Data 4.15)
[27]
Further, and in particular, clause 5.11.8(f) of the Tender Data
stipulates that bidders that
submit their bids as a Joint Venture are
to submit two B-BBEE certificates, one being a consolidated B-BBEE
certificate in the
name of the JV, one for each member of the JV.
That clause provides as follows:
“
In
the event of an un-incorporated joint venture (JV), a
project-specific (SANRAL project number indicated) consolidated
B-BBEE
verification certificate in the name of the JV issued by a
verification agency accredited by the South African National
Accreditation
System (SANAS) shall be submitted, as well as a valid
B-BBEE verification certificate for each member of the JV; and …)
[28]
From the foregoing it is clear and unambiguous that compliance with
all the aforementioned requirements
in respect of the proof of the
required B-BBEE contributor level status is to exist prior to the
closing date of the Tender Invite.
It follows that non-compliance
with any stipulated requirement will result in a non-responsive bid
that will not be considered
further during the second envelope
enquiry. To hold otherwise, will be to the prejudice of other valid
bids submitted. A non-compliant
bid will of necessity delay the
process to enable it to be made compliant and valid.
[29]
Furthermore, the B-BBEE proof must be:
(a)
a certificate, with specific content;
(b)
issued within a specified period;
(c)
issued by a specified institution; or
(d)
if not so issued in particular
circumstances, it must be in a specified format, i.e. in the form of
a sworn statement and accompanied
by specified documentation (i.e.
so-called self-verification); and
(e)
be valid at the tender closing
date.
[30]
It is common cause between the parties that the aforementioned
requirements are to be read with
the B-BBEE codes of which one is a
Generic Code. In terms of the Generic Code, an Emerging
Micro-Enterprise may supply so-called
self-verification in the form
of a sworn affidavit in respect of its status in order to comply with
the aforesaid clause 4 of the
Tender Data as qualified in clause 5.8
of the Tender Data.
[31]
Furthermore, it is clear that the proof of eligibility as required in
clause 4.11(f) is the same
as that specified in respect of
preferential eligibility points as stipulated in clause 5.11.8. The
requirements of clause 4.11(f),
when read with clause 5.11.8 in
respect of self-verification, must be in the form of a sworn
affidavit that is accompanied by,
either audited financial
statements, or a Management Account and must be valid at the tender
closing date.
[32]
The applicants participated as a Joint Venture, and were thus obliged
to submit a consolidated
verification certificate by an accredited
Verification Agency in addition to submitting individual, duly issued
verification certificates,
in respect of each member of the JV,
either issued by the accredited Verification Agency, or in the format
of a self-verification
certification as described earlier.
[33]
SANRAL found the JV to be non-compliant with the pre-qualification
eligibility requirement in
respect of the B-BBEE contributor status
level and consequently found the JV’s bid to be non-responsive
and hence to be excluded
from further consideration in the tender
process.
[34]
In that regard, the applicants’ specific complaint at being
excluded from further consideration
during the second envelope
process, is directed at SANRAL’s finding that the “affidavit”
submitted by the second
applicant relying on self-verification, in
proof of its B-BBEE contributor status level, was not a valid
“affidavit”.
The first respondent’s attention was
drawn to the invalidity of the affidavit submitted by the second
applicant by the first
respondent’s Internal Audit committee
and also by a report from the Department of Trade and Industry.
[35]
A scrutiny of the vexed “affidavit” reveals,
inter
alia,
that it bears two dates. One on which the deponent is
alleged to have deposed to and signed the document, and the other, a
day
later, on which the commissioner of oaths had ostensibly
commissioned the affidavit. It is the applicants’ view that
nothing
turns on the apparent discrepancy with the dates of signature
and commission. It is alleged on their behalf that it is
“non-material”.
It is furthermore contended by the
applicants that SANRAL was obliged to afford them the opportunity to
explain the apparent discrepancy
and possibly to “rectify”
the said discrepancy.
[36]
As recorded earlier, a JV member may under certain circumstances
self-certify its B-BBEE contributor
status level. The stipulated
manner being the submission of: a sworn affidavit; that is
accompanied by either audited financial
statements, or a Management
Account both of which are to bear a date within a particular time
period; and which is further to be
valid at the closing date of the
tender.
[37]
It is trite that an affidavit is to comply with certain prescribed
requirements, namely, the
provisions of the regulations promulgated
under the Justices of the Peace and Commissioners of Oaths Act, 16 of
1963. Regulation
1 thereof prescribes the manner of administering of
the oath or affirmation. Regulation 2 prescribes what the
commissioner of oaths
is required to ask a deponent before
administering the oath or affirmation. These are: whether the
deponent knows and understands
the content of the declaration
(statement); whether the deponent has any objection to taking the
prescribed oath; and whether the
deponent considers the prescribed
oath to be binding on the deponent’s conscience. Once the
deponent has answered the foregoing
questions in the affirmative, the
commissioner of oaths shall administer the oath as prescribed.
Regulation 3 provides for the
instance where the deponent
acknowledges and understands the content of the declaration, but
where the deponent objects to taking
the oath and does not consider
the oath to be binding on the deponent’s conscience, the
commissioner shall administer the
prescribed affirmation. Regulation
3 further requires that the deponent shall sign the declaration in
the presence of the commissioner
of oaths, whether by signature or
mark. Regulation 4 prescribes that the commissioner of oaths shall
certify below the deponent’s
signature or mark that the
deponent has acknowledged that the deponent knows and understands the
content of the declaration and
the commissioner shall further state
the manner, place and date of taking the declaration. Furthermore,
the commissioner of oaths
shall sign the declaration and print his
full name and business address below his signature and state his
designation and the area
for which the commissioner holds the
appointment or the office held by the commissioner if the appointment
is
ex officio
.
[38]
It is clear from the provisions of regulation 3 of the regulations
promulgated under the Justices
of the Peace and Commissioners of
Oaths Act, that it is peremptory that the intended deponent is to
sign the statement in the presence
of the commissioner who is obliged
to follow a stipulated process when commissioning the statement. This
is supported by the specific
proviso relating to where the intended
deponent cannot write and is obliged to make a mark, and where the
commissioner doubts that
inability to write, the commissioner shall
require some other trustworthy person to certify that apparent
inability to write. To
hold otherwise, would defeat the purpose of
the said regulation.
[39]
From the foregoing, it is clear that the stipulated requirements for
a sworn statement are obligatory
and not discretionary. The content
and context of the provisions of regulation 3, purposively read, is
peremptory. Non-compliance
of any of the prescribed requirements will
of necessity affect the validity of the declaration.
[40]
On behalf of the applicants it was submitted that the aforesaid
requirements in respect of a
sworn statement is not mandatory, nor
peremptory. In that regard, the applicants rely on a number of cases
where on the face of
those judgments it was held to be not peremptory
that the deponent is to sign the document in the presence of the
commissioner.
Those judgments are distinguishable from the present
instance. In those instances, the issue was whether the court could
accept
the document purporting to be an affidavit into evidence. The
probative value of such evidence is to be considered later. In the
present instance, the issue is not one of admissibility, but whether
a document, purporting to comply with pre-qualifying criteria,
in the
form of a certificate (as self-verification), was submitted, on time
and was valid.
[41]
It is undisputable that on the face of the alleged “affidavit”
the dates captured
thereon in respect of the signing of the statement
by the “deponent” and the commissioner differ. It follows
that the
statement was not signed by the deponent in the presence of
the commissioner. The form of the statement incorporates in its body
that which is to be determined by the commissioner and which is to
appear immediately below the deponent’s signature and
before
the commissioner’s signature. In the present instance that does
not appear on the “affidavit”, but above
the signature of
the deponent. That being so, there is no certification by the
commissioner as required by regulation 4(1). Furthermore,
there is no
compliance with the requirements of regulation 4(2) which,
inter
alia
, requires the designation and area for which the
commissioner holds the appointment.
[42]
The submitted “affidavit” clearly does not comply with
the peremptory requirements
of the regulations promulgated under the
Justices of the Peace and Commissioners of Oaths Act. Consequently,
the applicants have
not complied with the stipulated provisions of
clause 4.1.1(f) of the Tender Data. It follows that the applicants’
tender
bid was factually non-responsive and stood not to be
considered further, i.e. to be excluded. It was non-compliant with
the pre-qualifying
criteria of the stipulated B-BBEE contributor
status level.
[43]
The applicants further contend that the issue of B-BBEE contributor
status level is one of non-materiality.
Non-material in the sense
that it could be rectified later. There is no merit in that
contention for what follows.
[44]
The applicants rely upon the provisions of clause 5.7 of the Tender
Data. That clause provides:
“
Prior
to disqualification, the Employer shall inform the tenderer and give
the tenderer an opportunity to make representations within
14 days as
to why the tender submitted should not be disqualified and as to why
the tenderer should not be restricted by the National
Treasury form
conducting any business with an organ of state for a period not
exceeding 10 years.
In the event of
disqualification, the Employer may, at its discretion, claim damages
from the tenderer and impose a specified period
during which tender
offers will not be accepted from the offending tenderer and, the
Employer shall inform the National Treasury
and the CIDB in writing.”
[45]
As recorded earlier, non-compliance with the requirements of clause
4.1.1(f) of the Tender Data
specifications results in a
non-responsive bid, that is to be excluded from further
consideration. It is not a “disqualification”
in the
context of clause 5.7 of the Tender Data specifications.
[46]
The applicants do not explain why a non-responsive bid in terms of
clause 4.1.1(f) of the Tender
Data specifications, and hence an
excluded bid, would result in the tenderer being restricted by the
National Treasury from conducting
business with an organ of state for
a particular period. Such an interpretation would be irrational,
illogic and senseless. This
is more so where clause 5.7 provides for
a claim of damages that could be instituted against the tenderer and
where tender offers
from the “offending” tenderer will
not be accepted for a specified period in future.
[47]
It is common cause between the parties that the Standard Conditions
form part of the requirements
of the tender. That being so, Clause
5.7 of the Tender Data specifications is to be read with clause 5.7
of the Standard Conditions
which clause provides for the “grounds
for rejection and disqualification” and provides:
“
Determine
whether there has been any effort by a tenderer to influence the
processing of tender offers and instantly disqualify
a tenderer (and
said tenderer’s offer) if it is established that the tender
engaged in corrupt or fraudulent practices.”
[48]
When reading clause 5.7 of the Tender Data specifications with clause
5.7 of the Standard Conditions
in a purposive manner, the provisions
of the former becomes rational, logic and sensible. So purposively
read, clause 5.7 of the
Tender Data specifications clearly relate to
circumstances where fraud and corruption exist, or are found to
exist. It follows
that in the said circumstances an opportunity is
awarded to the “offending” tenderer to make
representations prior
to a disqualification.
Non constat
that
clause 5.7 of the Tender Data specifications apply to where there is
non-compliance with the requirements of clause 4.1.1(f)
of the Tender
Data specifications. The applicants’ aforesaid non-compliance
does not lean to fraud or corruption in the context
of clause 5.7 of
the Tender Data specifications.
[49]
Furthermore, if the applicants’ contention that SANRAL is
granted a discretion as contemplated
in clause 5.7 of the Standard
Conditions, then the stipulated result of non-compliance in clause
4.1.1(f) of the Tender Data specifications
is irrelevant, and of no
consequence. It would follow that the said result was to be
considered
non pro scripto
. The contention, and its logical
effect flies in the face of the trite principles of construction and
interpretation. Contextually
it would make no sense.
[50]
The applicants further contend that SANRAL could in any event and
easily “verify”
the B-BBEE contributor status level of
the second applicant by merely consulting, or perusing, the National
Treasury Central Supplier
Data base. There is no merit in that
contention. The applicants bear the onus of proving the certificate
relating to the required
B-BBEE contributor status level. It is not
for SANRAL to investigate from other possible sources what the
correct position is.
SANRAL bears no onus, it merely considers the
documentation submitted by a potential bidder to determine whether it
complies with
the prescribed requirements.
[51]
It follows that the applicants’ contention, that because they
were not granted an opportunity
to make representations in respect of
the defective “affidavit”, SANRAL did not act fairly, and
SANRAL’s consequent
determination was therefore unlawful.
[12]
[52]
Cameron, JA., as he then was, qualified in the
Metro Projects CC
case that fairness must be decided on the circumstances of each case.
From the foregoing, in my view, the particular circumstances
of the
present instance do not provide for an opportunity for the applicants
to insist upon a reliance on the
audi alteram partem
principle. Clause 4.1.1(f) of the Tender Data specifications does not
provide for a discretion to be exercised.
[53]
Furthermore, it is submitted on behalf of SANRAL that the applicants’
contentions in respect
of clause 5.7 of the Tender Data
specifications are contrary to the PPPFA regulations, which require
that a non-responsive tender
must be rejected. The applicants’
contentions in respect of that clause are clearly misplaced for what
is recorded earlier.
[54]
The content of the vexed affidavit is further non-compliant with the
stipulated requirements
of clause 4.1.1(f) of the Tender Data
specifications, read with clause 5.11.8(f) thereof. In that regard,
it was not accompanied
by an audited financial statement or
Management Account on the latest financial year, or a certificate
issued by the Companies
and Intellectual Property Commission in the
case of an Exempted Micro Enterprise (EME) if issued in accordance
with the amended
Construction Sector Codes published in Notice 931 of
Government Gazette No 1287 on 1 December 2017 by the Department of
Trade and
Industry. This is common cause.
[55]
If the applicants’ contentions as discussed earlier are to be
accepted, the purpose of
setting pre-qualification criteria would be
defeated. It would make a mockery thereof and mere lip service would
then be paid to
statutory prescripts. A potential bidder could
slovenly prepare tender documentation and demand indulgence to the
prejudice of
competing bidders.
[56]
It follows that the applicants’ contentions that the
non-compliant “affidavit”
is non-material is flawed for
what is recorded above. There is likewise not merit in the
applicants’ contentions that SANRAL’s
finding that the
bid of the applicants was non-responsive and to be excluded from
further consideration was irrational, unfair
and unlawful. The
applicants themselves are to blame for their apparent dilemma. SANRAL
was entitled to hold the applicants’
bid to be non-responsive
and to be excluded from further consideration. The applicants simply
did not pre-qualify as a bidder.
[57]
There is no merit in the application for review and setting aside of
SANRAL’s decision
to exclude the applicants’ bid from
further consideration. The application stands to be refused.
I grant the following
order:
The
application for review is dismissed with costs, such costs to include
the costs consequent upon the employment of two counsel.
C
J VAN DER WESTHUIZEN
JUDGE
OF THE HIGH COURT
Date
of Hearing:
21
& 22 April 2021
On
behalf of Applicant: P Snyckers
SC
A
Friedman
Instructed
by:
Nicqui Galaktiou Inc.
On
behalf of Respondent: NGD Maritz SC
S
Tshikila
Instructed
by:
Gildenhuys Malatji Attorneys
Judgment
handed down: 17 June 2021
[1]
Section
49 of the PFMA; Section 12 of the SANRAL Act
[2]
Section
9 of the B-BBEE Act
[3]
Allpay
Consolidated Investment Holdings (Pty) Ltd et al v Chief Executive
Officer, South African Social Security Agency et al
2014(1) SA 604 (CC) [40]
[4]
In
particular clause 4.1.1(f) and clause 5.11.8 of the Tender Data
[5]
See
in this regard regulations 4(1) and 4(2) issued under the
Preferential Procurement Act, 5 of 2000
[6]
T1.1 Tender Notice and Invitation
[7]
Regulation
4(2) of the Regulations under the Preferential Procurement Act.
[8]
T1.1 Tender Notice and Invitation
[9]
T1.2
of the Tendering Procedures: Tender Data
[10]
Clause 4.1.1 Tender Data
[11]
Clause 4.1.1(f) Tender Data
[12]
Metro
Projects CC v Klerksdorp Local Municipality
2004(1) SA 186 (SCA) [13]