Faranani Information Technology Services (Pty) Limited v State Information Technology Agency (SOC) Limited (66318/2015) [2017] ZAGPPHC 173 (3 April 2017)

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[2017] ZAGPPHC 173
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Faranani Information Technology Services (Pty) Limited v State Information Technology Agency (SOC) Limited (66318/2015) [2017] ZAGPPHC 173 (3 April 2017)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 66318/2015
3/4/2017
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In the matter between:
FARANANI
INFORMATION
TECHNOLOGY
Applicant
SERVICES
(PTY) LIMITED
and
STATE
INFORMATION TECHNOLOGY
AGENCY
1
st
Respondent
(SOC)
LIMITED
GIJIMA
HOLDINGS (PTY)
LIMITED
2
nd
Respondent
THE
MEMBER OF THE EXECUTIVE
COUNCIL
3
rd
Respondent
FOR
THE MPUMALANGA DEPARTMENT
OF
HEALTH
JUDGMENT
Baqwa
J
[1]
This is a review application in terms of which the applicant seeks to
review and set aside the decision of the first respondent
to appoint
the second respondent as a service provider to the Health Department
of Mpumalanga Province.
[2]
The application was brought by way of an urgent application on 8
September 2015 before Madame Justice Mngqibisa-Thusi.
[3]
The relief sought in the urgent application was captured in two
parts, Part A and Part B. The applicant sought an order in the

following terms:
“
1. Ordering that the forms
and service provided for in the Rules of Court be disposed with and
that the matter be heard as an urgent
application in terms of Rule
6(12) of the Rules of Court.
2. Pending the finalisation of the
relief sought in Part B, interdicting and restraining the first
respondent from taking any steps
to implement the appointment of the
second respondent as a service provider pursuant to the tender that
was advertised described
as "RFB 128612014: Application support
and maintenance of the patient electronic system (PEIS) for the
Mpumalanga Department
of Health" ("the tender').
3. Ordering the first respondent
and any other respondents who oppose the interim relief sought to pay
the costs of this application,
including the costs of two counsel;
alternatively ordering that such costs be reserved for determination
in terms of Part B of
this application.
4. Further or alternative relief."
[4]
In Part B the applicant seeks an order in the following terms:
“
1. Reviewing and setting
aside the decision of the first respondent to appoint the second
respondent as
a
service provider pursuant to the tender
described as "RFB 128612014: Application support and maintenance
of the patient electronic
system (PEIS) for the Mpumalanga Department
of Health" ("the tender”);
2.
Substituting the decision
of the first respondent to award the tender to the second respondent,
and awarding the tender to the applicant;
3. Interdicting and restraining the
first and second respondent from concluding
a
service level
agreement pursuant to the award of the tender.
4. Ordering the first respondent,
and the second respondent only in the event of it opposing Part B of
this application, to pay
the applicant's costs including the costs of
two counsel, jointly and severally, the one paying the other to be
absolved, and
5.
Further or alternative
relief "
[5]
Part A was adjudicated upon and Mngqibisa-Thusi J issued an order
dismissing Part A of the application with costs.
[6]
Part B was brought in terms of Rule 53 of the Uniform Rules of Court
and constitutes the application that this Court is called
upon to
decide.
[7]
At the commencement of these proceedings, the applicant brought an
application for orders in the following terms:
"1. Amending  the
applicant's notice of motion to Part B of the application by:
1.1. Inserting the words "for
a
period of two years from the date of the order" at the
end of prayer 2; and
1.2. Deleting prayer 3 and
replacing it with the following words: "Setting aside the
service level agreement entered into between
SITA and Gijima on
a
November 2015".
2. Ordering that the costs of this
application be costs in the cause.
3. For further or alternative
relief."
[8]
The application for an amendment was not opposed by the respondents
and it was granted accordingly.
[9]
Both the first and second respondents, namely, State Information
Technology Agency (SOC) Limited (SITA) and Gijima oppose this

application and they have filed answering affidavits. The third
respondent, which is the member of the Executive Council for the

Mpumalanga Department of Health ("MDOH') does not oppose the
application and has not filed any papers.
Background
[10]
Faranani is a Black Economic Empowerment Information Technology
Services Provider which was responsible for the development
and
implementation of an IT system known as Patient Administration and
Billing System
(" PAAB")
which forms part of the
Patient Electronic Information Systems ("PE/S").
[11]
PEIS is a hospital information system which provides administrative
and clinical information to hospitals to enable staff to
administer
the patient's healthcare needs, bill patients, and collect revenue in
all provincial hospitals and public health-care
centres. PEIS
provides for a master patient index which allows for a single patient
view across all hospitals. The system was developed
by Faranani to
support patient administration (admissions, discharge and transfer)
revenue collection, chronic disease management,
clinical functional
ity and management reporting. The flexibility of the systems allows
for each visit by a patient to a public
hospital to be captured on
the database - either on a visit-by-visit basis, or per medical
incident.
[12]
PEIS has progressed hospital administration to such an extent that it
is currently being utilised in most public hospitals
in the country.
[13]
In 2004, Faranani was appointed to develop and implement PEIS for the
MDOH in 33 Mpumalanga public hospitals. Since 2004 and
until 2005
Faranani was awarded successive three year period service level
agreements for the continued support, maintenance, development
and
implementation of PEIS and related services.
[14]
On 5 December 2014, SITA issued an open invitation to bid for the
tendering of PEIS services to the MDOH for a further two
year period
award of the tender.
[15]
Both Faranani and Gijima put in a bid for the tender and on 8 July
2015 Faranani was formally notified by SITA that Faranani's
tender
had been unsuccessful and that the tender had been awarded to Gijima.
[16]
Faranani lodged an objection and also requested reasons for the
decision together with an undertaking that the tender would
not be
implemented pending an internal appeal.
[17]
By letter dated 27 July 2015 SITA stated that both bidders had
complied with all the technical mandatory requirements in the
tender
documents and that Gijima had been awarded the tender as they had
scored higher than Faranani on price.
[18]
SITA, however, would not provide an undertaking that the tender would
not be implemented pending the review process.
[19]
After a formal request for documents in terms of the Promotion of
Access to Information Act 2 of 2000 ("PA /A") on
5 August
2015 SITA provided Faranani with copies of the Bid Adjudication
Report as well as a copy of the Supply Chain Management
Policy of
SITA. The present application was thereafter launched by Faranani.
The
Review Application
[20]
The bid contains a number of mandatory and non-mandatory
requirements. Failure to comply with the mandatory requirements leads

to a bidder being disqualified.
[21]
Faranani contends that Gijima failed to comply with a number of
mandatory requirements and ought to have been disqualified
from going
forward in the selection process.
The
Law
[22]
Section 217 of the Constitution reads as follows:
"(1) When an organ of State in
the national, provincial or local sphere of government, or any other
institution identified
in national legislation, contracts for goods
or services, it must do so in accordance with
a
system which
is fair, equitable, transparent, competitive and cost effective.
(2) Subsection (1) does not prevent
the organs of State or institutions referred to in that subsection
from implementing
a
procurement policy providing for
–
(a) categories of preference in the
allocation of contracts; and
(b)
the protection or
advancement of persons, or categories of persons, disadvantaged by
unfair discrimination.
(3) National legislation must
prescribe
a
framework within which the policy referred to in
subsection (2) must be implemented."
[23]
The national legislation referred to in section 217 (3) of the
Constitution is the Preferential Procurement Policy Framework
Act 5
of 2000
(" the PPPFA" ).
The PPPFA defines an
"acceptable tender"
as
"any tender which, in
all respects, complies with the specifications and conditions of
tender as set out in the tender document."
[24]
In
Steenkamp NO v Provincial Tender Board, Eastern Cape
2007
(3) SA 121
(CC) at para 23 Moseneke DCJ held that:
"Section 217 of the
Constitution is the source of the powers and function of
a
government tender board. It Jays down that an organ of State in
any of the three spheres of government, if authorised by law may

contract for goods and services on behalf of government. However, the
tendering system it devises must be fair, equitable, transparent,

competitive and cost-effective. This requirement must be understood
together with the Constitutional precepts on administrative
justice
in  section  33 and  the  basic  values
governing  public administration in section
195 (1)."
[25]
In
Millenium Waste Management (Pty) Ltd v Chairperson, Tender
Board: Limpopo Province and Others
2008 (2) SA 481
(SCA) at para
4 the Supreme Court of Appeal elaborated on this approach as follows:
" The.... Constitution Jays
down minimum requirements for
a
valid tender process and
contracts entered into following an award of tender to
a
successful tender (section 217). The section requires that the
tender process, preceding the conclusion of contracts for the supply

of goods and services must be 'fair, equitable, transparent,
competitive and cost-effective'.  Finally, as the decision to

award
a
tender constitutes administrative action, it follows
that the provisions of [PAJA] apply to the process."
[26]
The Constitutional Court reiterated that the proper starting point
regarding the tendering process is section 217 of the Constitution

and summarised the Court's approach as an
"evaluation of the
approach to the assessment of the Constitutional validity of outcomes
under the state procurement process."
See
AllPay Consolidated Investment Holdings (Pty) Ltd and Others v
Chief Executive Officer, South African Social Security Agency and

Others
214 (1) SA 604
(CC) ("Al/Pay
Merits Judgement').
[27]
In the AllPay Merits Judgment Froneman J sums up the judicial review
enquiry as follows at para 45:
"Section 217 of the
Constitution, the Procurement Act and the Public Finance Management
Act provide the Constitutional and
legislative framework within which
administrative action may be taken in the procurement process. The
Jens for judicial review
of these actions,
as
with other
administrative action, is found in PAJA. There is no magic in the
procurement process that requires
a
different approach.
Alleged irregularities may differ from case to case, but they will
still be assessed under the same grounds
of review in PAJA. If
a
court finds that there are valid grounds for review, it is
obliged to enter into an enquiry with
a
view to formulating
a
just and equitable remedy. That enquiry must entail weighing all
relevant factors, after the objective grounds for review have been

established."
Faranani's
Challenge to the Award
[28]
It is clear from the abovementioned legal prism that all the relevant
factors regarding the award have to be weighed against
the main
thrust of the challenge by Faranani which is based on the allegation
that SITA ought to have disqualified Gijima for non-compliance
with
the mandatory requirements that the bidder, that is, Gijima, was
required to have three years' experience and expertise in
the
operations of the provincial hospitals and its related healthcare
process and that Gijima did not have that experience.
[29]
This Court is therefore called upon to determine whether SITA
29.1. failed to comply with a
mandatory and material procedure prescribed by an empowering
provision (section 6 (2)(b) of PAJA);
29.2. its decision was influenced by
an error of law as it was not empowered to take such a decision
(section 6 (2)(d) of PAJA);
29.3. its decision was not rationally
connected to the information before the BAC (section 6 (2)(f)(ii)(cc)
of PAJA);
29.4. it failed to take into
consideration relevant considerations, namely, the fact that Gijima
did not comply with several mandatory
and material conditions
(section 6 (2)(e)(iii) of PAJA);
29.5. the BAC's finding that the
Gijima bid was compliant was arbitrary and capricious (section 6
(2)(e)(vi) of PAJA).
[30]
In the AllPay Merits Judgment the Constitutional Court held that
"[t]he materiality of irregularities is determined by
assessing whether the purposes the tender requirements serve have
been
substantively achieved."
[31]
It is evident from the record of the bid assessment process that the
so called mandatory requirements are indicated by the
bidders through
what could be described as a
"tick box"
form filling
exercise in which a bidder has to make a tick against a
"compliance"
or
"non-compliance"
box. Below the said boxes it
is specified in black and white that there is
"no
substantiation requirecf'.
In other words, where
"experience"
of whatever nature is required, a bidder may tick against the
"comply"
box
to
indicate that he/it has the
necessary experience. It would seem therefore that the totalling up
of the
"comply"
ticks against a set threshold
results in a bidder passing the initial stage of assessment to the
second stage which then drills
down into a more detailed examination
of the bid documents and an assessment in qualitative and
quantitative terms of what each
bidder has to offer.
[32]
A comparison is then made of the points scored against each category
of the bid specifications. The process involves a pooling
of the
points scored by each member of the BAC for each bidder and this
finally produces the winning bidder.
[33]
Even a perfunctory examination of the mandatory requirements
"tick
box"
form suggests logically that whilst it may enable a
bidder to go past the initial bidding phase, it puts him nowhere near
becoming
a winning bidder. Where he indicates being compliant with
the experience requirement, the BAC still has to logically drill down

to what that experience comprises. In my view, it can only be after
that drill down process that it can be alternatively contended
that a
particular bidder complied or not with a particular mandatory
requirement.
[34]
SITA confirms that it is not required to take any steps to verify the
information and that it will not disqualify a bidder,
simply because
a bidder has ticked a box which indicates compliance. Faranani
contends that such an approach is both legally untenable
and that
SITA's conduct does not meet the standards of a reasonable organ of
State, exercising public power.
[35]
It does indeed seem that in the absence of substantiation, the
initial process lends itself to potential abuse and that it
might
require to be tightened up, but, as things presently stand, that is
the gate through which all the bidders have to go through.
I agree
that were the process to end or be subject only to the initial stage
described above, it would certainly not be said to
meet standards of
a reasonable organ of State. The fact is however in the present case
that copious documentation evidencing the
capacity and capability of
a bidder to execute the tender is required and is painstakingly
analysed by the BAG.
[36]
In
casu,
it is common cause that with regard to the experience
referred to experience required in paragraph 2.16.1; 2.16.2 and
2.16.3 of
the mandatory requirements and 3.2.1 of the non-mandatory
requirements, Gijima relied on the experience of one Dr Pino
Mavengere
who was not an employee or subcontractor of Gijima at the
time the bid was submitted. Gijima submitted a comprehensive
curriculum
vitae of Mavengere and submitted that he had been engaged
to join the Gijima team in the event of it winning the bid. Counsel
for
Gijima have submitted that the bid process was not premised on
existing staff or on the need to submit completed employment
contracts
for every resource that Gijima would utilise in the
execution of the contract.
[37]
In support of this submission counsel for Gijima even referred the
Court to a ramping up clause in the bid specification which
enabled a
winning bidder to ramp up the resource capacity within certain
specified periods. It was therefore submitted that this
is the
category in which Mavengere would fall.
[38]
Under the past projects heading of the bid, the bidders were required
to list three projects in which they were previously
involved. In its
bid response Gijima indicated involvement in a project involving SAMA
Electronic Health Record Project: Ujambi
Medical Services. This
project involves the design, development and implementation of an
Electronic Health Record System ("HERS")
to include 17 000
doctors and practices. Those records would contain personal
information, diagnostics treatments, treatments,
pharmaceuticals etc.
The scope of the project also included interlinking with smartcards,
smartcards architecture, switch design
and billing information. This
clearly demonstrated that Gijima had the technical ability to meet
the mandatory requirements in
paragraphs 2.16.1 to 2.16.3 and 2.16.8.
[39]
Counsel for Faranani submitted that Gijima had made a fraudulent
misrepresentation with regard to experience in the healthcare
systems
sphere. A critical factor in deciding whether such a
misrepresentation was made was the submission by SITA which
strenuously
denied that it had been misled in any way by the
information provided by Gijima.
[40]
SITA contends that
"the bid evaluation is
a
holistic
process and all the requirements are taken into account to determine
whether
a
bidder is disqualified or not."
[41]
It is important to note that the thrust of the challenge against the
award is against the evidence or information provided
by Gijima into
the tender process and not that SITA operated outside the tender
framework.
[42]
In
Westinghouse Electric Belgium SA v Eskom Holdings (SOC) Ltd and
Another
2016 (3) SA 1
(SCA)
("Westinghouse")
para
43 the Court emphasising the decision in Allpay Merits Judgment held
that a:
"
....
tender
invitation, which sets out the evaluation criteria, together with the
constitutional and legislative procurement provisions,
constitute the
legally binding framework within which tenders have to be submitted,
evaluated and awarded. There is no room for
departure from these
provisions."
[43]
In Westinghouse, the Supreme Court of Appeal considered the effect of
non­ compliance with tender requirements in which
Eskom (the
first respondent) issued an invitation for tenders for the
replacement of six steam generators at a nuclear power station.

Westinghouse (the appellant) was one of the bidders. The other bidder
was Areva, a French company.
[44]
Eskom awarded the contract to Areva and Westinghouse sought to review
the decision to award the tender to Areva. The questions
before the
Court of appeal were whether the award had followed an unlawful
tender process and, if so, whether the Court should
substitute
Westinghouse for Areva as the successful bidder. More specifically,
the Court had to consider whether Eskom had been
entitled to take
into account certain previously undisclosed
"strategic
considerations",
which Westinghouse contended did not form
part of the original bid evaluation criteria. In other words, if
Eskom had taken additional
criteria into account. Westinghouse
alleged that Eskom had acted beyond its powers and thus unfairly.
Westinghouse further argued
that the whole process of the award of
the tender was unlawful, because there wasn't proper compliance with
the tender requirements.
[45]
The Supreme Court of Appeal agreed and found that the award had
followed an unlawful tender process and that Eskom, in taking
into
account considerations not included in the bid evaluation criteria,
had made its decision unlawfully, thus making the whole
process
irrational and unlawful. The Court referred the award back to Eskom
for reconsideration.
[46]
In the present case it would seem that the tipping point regarding
the legality or otherwise of the actions of the BAC was
dependent on
whether Gijima failed to supply relevant information regarding the
experience required or alternatively, had supplied
information which
was false in that the Mavengere resource was either non-existent or
unavailable to Gijima as a bidder in which
case that would have
constituted what is commonly referred to as
"fronting".
[47]
Besides the information regarding Mavengere it was part of Gijima's
submission that it had rendered services to the KwaZulu
Natal (KZN)
Department of Health and that it possessed the relevant experience.
47.1 Over and above that Mavengere was
identified as a Project Team Member and his expertise in the health
sector is extensively
set.out in the documents submitted. He is a
medical doctor who is familiar with the operation and and process of
provincial hospitals,
was a coordinator for IDC 10 codes and the UPFS
and implemented and reviewed a number of pharmaceutical systems or
solutions for
the public and private sector. SITA and/or the BAC seem
to have been satisfied that the expertise proffered in Gijima's bid
satisfied
the requirements as specified in the tender. Faranani seems
to have misconstrued the mandatory requirement to refer to three (3)

years' experience in PEIS whereas the experience required was that of
operations in provincial hospitals.
[48]
It is common cause that the contract that was awarded to Gijima has
not only been duly executed but that it is now nearing
completion in
a few months' time. Even though the further evidence tendered by
Gijima regarding Mavengere's current employment
position has not been
relevant for determination of this review application, I have taken
judicial notice of the fact that Mavengere
is currently part of the
execution of the contract by Gijima.
Price
Comparison
[49]
The second thematic ground of review relates to SITA's failure to
engage in a proper price comparison of the bid price of Faranani
and
Gijima. The criticism levelled was that Gijima had not priced for the
Electronic Data Interchange
(" the EDI")
and that
there are other hidden costs or that the bid was under­
inclusive.
[50]
EDI is an acronym for Electronic Data Interchange. The EDI allows for
the electronic submission of documents and data to a
medical switch,
which then allows for the exchange of data and documents with the 92
medical aids in South Africa. This allows
the provincial hospitals to
keep up to date with all detailed rules of the 92 medical aids and
enables them to know whether a patient's
bill will be paid by a
medical aid or not. The medical switch also allows the hospital to
submit the hospital bill electronically
to the medical aid. The
medical switch then bills the hospital, via the IT service provider,
on a per transaction basis for every
transaction it submits on behalf
of the hospital.
[51]
Both SITA and Gijima submit that the criticisms are unwarranted as
Gijima had indicated that Faranani had misunderstood its
bid in
relation to EDI. Gijima had not included pricing for the EDI and
simply indicated that there was no additional cost for
the
maintenance and support of the EDI. Gijima had quoted fully for the
services to be rendered in terms of the tender and confirmed
this on
affidavit. The question of hidden costs did not therefore, arise.
[52]
Counsel for Faranani contends that SITA did not compare
'apples
with apples'
in comparing a pricing structure which contained a
pricing for EDI (Faranani's) with one which did not (Gijima's). The
fact of the
matter is, it could hardly have been expected of the BAC
to take out the EDI pricing out of Faranani's bid in order to make it
similar to Gijima's before reaching its final decision. To use
counsel's analogy, that could have been changing an orange to an

apple which would have been inappropriate interference with bidder's
offering.
[53]
Quite clearly, as is obvious also from the bid specification
documents, pricing was a critical element of the bid process that
the
parties herein were involved in. Closely aligned to the price
consideration issue was also the budget available to the MDOH
to
implement the project. The pricing decision could not, therefore be
reached in an arbitrary or capricious manner. There was
a financial
ceiling beyond which the implementation of the project would be
impossible to execute. To put it differently, the tender
process was
price sensitive hence the decision that was reached to accept the bid
with a lower price with a concomitant certainty
that the project
would be successfully executed. I therefore do not find that SITA
took the wrong decision even in this regard.
Team
Scoring
[54]
Faranani also complains that the team score at the
functional/technical evaluation stage is irrational and arbitrary in
that
the team score is not an average score determined by the
individual scores. What appears to have happened is that the
evaluation
team members scored the bidders separately and thereafter,
they convened and re-evaluated the scores on a consensual basis.
Logic
dictates that the evaluators could not have all arrived at the
same score even though they acted individually and independently
of
each other. The tender was ultimately awarded on the basis of the
collective views of the team and not on individual scores.
It was in
that nature of the process that it was a team score that was sought
and not an individual score. This in my view can
hardly be dubbed
arbitrary or capricious.
[55]
At the evaluation stage, the bidders had to achieve a 70% threshold
in order to qualify to proceed to the next stage. Both
bidders
achieved the 70% threshold and Faranani did not therefore suffer any
prejudice in that allocation of the scores did not
negatively impact
both bidders.
The
Bid Adjudication Report
[56]
The following is evident from the Bid Adjudication Report: MDOH
required the continued application support of the existing
PEIS at
the current hospitals and roll out of additional modules, if any. The
evaluation process was divided into the following
phases:
56.1 Phase  1 was  the
initial  screening  of  the  RFB  (Request
for  bid)
responses received;
56.2 Phase 2 was the evaluation of the
RFB technical mandatory requirements;
56.3 Phase 3 was the evaluation of RFB
non-mandatory requirements using the evaluation criteria;
56.4 Phase 4 was the price and
participation goal evaluation.
[57]
The bid stipulated that the responses were to be evaluated using
90/10 preference point system in accordance with the Preferential

Procurement Policy Framework Act 5 of 2000 ("PPPFA")
guidelines and based on the system that the points allocated were
90
for price and 10 for participation goals and the total being 100.
[58]
Both Gijima and Faranani passed the initial screening process.
[59]
As far as phase 2 being the evaluation of the technical mandatory
requirements both bidders were evaluated and qualified.
[60]
The first phase of the technical evaluation was to confirm full
compliance with all technical mandatory requirements as specified
in
the bid document and for that purpose, any bidder that failed to
comply with any of the requirements listed in the bid was
disqualified.
[61]
The technical mandatory requirements are not subjected to any scoring
as these are absolute minimum requirements.
[62]
No bid responses were eliminated for non-compliance with mandatory
technical criteria as they all complied.
[63]
The technical evaluation committee endorsed the technical evaluation
report.
[64]
The next phase was the evaluation; the Bid Evaluation Committee
("BEG") members individually scored each qualifying
bid
submission using the scoring matrix for the non-mandatory
requirements.
[65]
An average score was then calculated for each qualifying bid
response.
[66]
A functional/technical evaluation report was written which summarises
the evaluation process.
[67]
Both bidders met the mandatory requirements.
[68]
The rating scale was shown for evaluating each qualifying bid
response against the functionality requirements and the rating
scale
ranged from 0 for non-compliance to 5 for fully compliant and meeting
all the requirements.
[69]
Bidders who scored less than 70% would be disqualified and would not
be evaluated further for price and participation evaluation.
[70]
According to the individual and team scores for non-mandatory
requirements Gijima scored 94% while Faranani scored 100%. Both
sides
therefore scored more than 70% and qualified to be evaluated in the
next phase of price and participation goal evaluation.
[71]
The formula applied to calculate price based on the 90% preference
point system  and  the  lowest  acceptable

offer   under   consideration   was
R16 624 798.56.
[72]
The price evaluation report was prepared by a different team from the
BEC. Based on the evaluations Gijima scored the highest
points for
price.
[73]
A cost comparison table was compiled which was in line with the
casting module as set out in the tender documents.
[74]
Faranani offered a price of R17 971 144.16 excluding value added tax
(VAT).
[75]
The last stage of evaluation was Broad-based Economic Empowerment
which is set out in a separate report.
[76]
The amount budgeted for the project was the sum of R15 091 706.00
exclusive of VAT and R17 204 545.00 inclusive of VAT.
[77]
An internal audit report review was concluded into the procurement
process of the tender. Based on the examination of the document

analysed it was concluded that the procurement processes followed
were in line with the Supply Chain Management Policy of SITA
except
for a minor issue that the BEC Chairperson did not sign the
function/technical evaluation report which he subsequently signed.
[78]
The audit report notes that the evaluation scores were incorrectly
consolidated, however this did not have any impact on the
evaluation
process as the bidders scored above 70%.
[79]
In the circumstances it appears that the evaluation process was
conducted fairly, in a transparent and open fashion as prescribed
by
section 217 of the Constitution of the Republic of South Africa, the
PPPFA, the SITA Supply Chain Management Policy and the
general
dictates of lawful action as required from an organ of State.
[80]
The BEC was satisfied that a proper evaluation process had been
followed and recommended that Gijima be appointed as a successful

bidder.
[81]
The individual scores of the BEC members are part of the record.  The
individual scores of the evaluators were consolidated
into a report
which the members signed and endorsed.
[82]
It would also seem therefore, that there is no proper basis to
challenge the outcome of the bid evaluation.
General
Tender Objectives
[83]
It is common cause that the BEC comprised technically qualified
persons who were able to evaluate the tender and in their expert

opinion concluded that both Faranani and Gijima met the mandatory and
non-mandatory requirements. It is trite that judicial deference
is
appropriate where the subject matter of an administrative action is
technical or of a kind in which the Court has no particular

proficiency. See
Ekurhuleni Metropolitan Municipality
v
Dada
N.
0.
2009 (4) SA 463
at P468 G - 1 469 A.
[84]
In
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Others
[2004] ZACC 15
;
2004 (4) SA 490
CC, the Constitutional Court said:
"[48] In treating the
decisions of administrative agencies with the appropriate respect,
a
court is recognising the proper role of the executive within the
Constitution.  In doing so
a
court should be careful not
to attribute to itself superior wisdom in relation to matters
entrusted to other branches of government.
A court should thus give
due weight to
findings of fact and policy decisions made by
those with special expertise and experience in the field. The extent
to which
a
court
should give weight to these
considerations will depend upon the character of the decision itself,
as well as on the identity of
the decision-maker. A decision that
requires an equilibrium to be struck between
a
range of
competing interests or considerations and which is to be taken by
a
person or institution with specific expertise in that area must be
shown respect by the courts."
[85]
It bears to be mentioned that even if there was some merit to the
complaints by Faranani they are of a technical nature which
must be
seen in the context of the dictum in Westinghouse
(supra)
in
which the Court held as follows:
"[36] That is doubtless still
good law. In Allpay Consolidated Investment Holdings (Pty) Ltd
&
others v Chief Executive Officer, South African Social Security
Agency
&
Others
2013 (4) SA 557
(SCA) (Allpay SCA) para 96
this court said:
"There will be few
cases
of any moment in which flaws in the process of public procurement
cannot be found, particularly where it is scrutinized intensely
with
the objective of doing
so.
But
a
fair process does not
demand perfection and not every flaw
is
fatal."
It is, of course, only immaterial
flaws (termed 'inconsequential' by that court) that may be
overlooked."
[86]
I have considered the BAC report and various submissions by counsel
for both Faranani and Gijima and I have come to the conclusion
that
the SITA decision was neither arbitrary nor capricious.
[87]
Counsel have also addressed me on the issue of this Court
substituting its decision for that of the expert decision maker.
In
light of the conclusion I have just expressed that issue does not
arise.
[88]
In the result, I make the following order:
The
application for review is dismissed with costs.
_______________________
S.
A. M. BAQWA
JUDGE
OF THE OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Date
of Hearing:
6 March 2017
Date
of Judgment:
3 April 2017
For
the Applicant:
Advocate C. E. Watt-Pringle SC
Advocate K. S. McLean
Instructed
by:
Mervyn Taback lncororated
For
the First Respondent:
Advocate F. J. Nalane
Instructed
by:
Diale Mogashoa Attorneys
For
the Second Respondent:
Advocate M. A. Chohan SC
Advocate A. Govender
Instructed
by:
Weber Wentzel Attorneys