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[2016] ZAFSHC 186
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Down Touch Investments v Matjhabeng Local Municipality and Another (A73/2016) [2016] ZAFSHC 186 (28 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A73/2016
In
the appeal between:-
DOWN
TOUCH
INVESTMENTS
Applicant
and
MATJHABENG
LOCAL
MUNICIPALITY
1
st
Respondent
REMBU
CONSTRUCTION
2
nd
Respondent
CORAM:
MOLEMELA, JP
et
JORDAAN,
J
JUDGMENT
BY:
MOLEMELA, JP
HEARD
ON:
17 OCTOBER 2016
DELIVERED
ON:
28 OCTOBER 2016
INTRODUCTION
[1]
This is an application for review brought by a construction company
known as Down Touch Investments (the applicant) against
Matjhabeng
Local Municipality (first respondent) for the review of its decision
to award a construction tender to the second respondent,
Rembu
Construction. This application is a sequel to two urgent applications
brought by the applicant against the first respondent.
In the
first urgent application, the applicant sought and was granted an
order compelling the first respondent to furnish reasons
for its
decision to award the tender to the second respondent and further
ordering the first respondent to provide the applicant
with certain
documents relating to the tender. In the second urgent
application, the applicant successfully interdicted the
first
respondent from further implementing its decision to award the
tender, with the result that the commencement of the project
tendered
for was halted. Only the first respondent is opposing the
application for review.
BACKGROUND
FACTS
[2]
In September 2015 the first respondent issued a public invitation
(“Invitation to Bid”) inviting contractors to
submit bids
for the “
Upgrading
of Dr Ngoma Road and Storm Water Management”
(“the Works”) in Thabong, Welkom. In February 2016 the
first respondent awarded the tender to the second respondent.
Upon hearing of the awarding of the tender, the applicant approached
this court for relief
[1]
.
[3]
The Invitation to Bid (ITB) set out the rules applicable to the
tender. It,
inter
alia,
specified that bid documents would be available from 14 October 2015.
The closing date for the tender was 9 November 2015.
The ITB
further stipulated that the evaluating criteria applicable to the
tender would be the 90/10 point-scoring method, with
ninety points
being allocated for the price and ten points for the Broad Based
Black Economic Empowerment (BBBEE) status
[2]
.
The ITB further stipulated that a compulsory briefing session would
be held on 16 October 2015. The ITB also set out
the minimum
requirements applicable to the bid. It also provided that the
Municipal Supply Chain Management Policy and the
Preferential
Procurement Policy Framework Act, 5 of 2000 (PPPFA) are applicable to
the tender.
[4]
It is common cause that the tender data stipulated three phases for
the evaluation of submitted tenders. Phase 1, termed the
“Administration Phase”, entailed checking whether the
tender documents had been initialised and signed at the appropriate
places. It further necessitated checking whether supporting documents
such as the tax clearance certificates, company registration
certificates, CIDB grading, Joint Venture Agreements, Bills of
Quantities and declaration on past Supply Chain Management practices
had been submitted. It also entailed ascertaining whether the
tenderers had attended the compulsory site-briefing meeting
[3]
.
Tenders that did not meet the requirements stipulated in Phase 1 were
to be regarded as “non- responsive”.
[5]
Tenders that passed the responsiveness threshold progressed to Phase
2 of the tender process. The Phase 2 process entailed evaluating
tenders for
functionality
.
In the first respondent’s Supply Chain Management policy
attached to the tender documents,
functionality
is defined as “the measurement according to predetermined
norms, as set out in the tender documents, of a service or commodity
that is designed to be practical and useful, working or operating,
taking into account, among other factors, the quality, reliability,
viability and durability of a service and the technical capacity and
ability of a bidder.” As part of the functionality criteria,
bidders were to be allocated points for (i) key staff and
experience
[4]
,
(ii) plant and equipment
[5]
,
and bank rating
[6]
.
The tender data stipulated that a tender would be disqualified “if
it failed to meet the minimum threshold of 60% on functionality
and a
minimum of 20 points on relevant experience”. Only once a
tenderer had reached this threshold would Phase 3 become
applicable.
Phase 3 entailed allocating the final score using the 90/10 point
system.
[6]
It is common cause that the first respondent appointed a firm of
engineers (Tsela Tshweu Consulting Engineers) as its principal
agent
for the evaluation of the tender and that Tsela Tshweu subsequently
submitted an evaluation report to the first respondent’s
Bid
Evaluation Committee
[7]
.
[7]
It is undisputed that of the 43 bidders that submitted tenders, 23
were considered non-responsive and were not evaluated any
further.
It is also not disputed that as proof of past experience the
applicant submitted a list of similar projects it had
previously done
but did not submit completion certificates in respect of these
projects. The applicant’s averment that it
and the first
respondent had previously entered into contracts involving projects
similar to the one that was the subject of this
tender and that seven
of those projects had already been completed was not challenged.
Similarly, the applicant’s assertion
that Tsela Tshweu
allocated it the maximum points for functionality was not
controverted.
[8]
It is common cause that the applicant was eliminated during the
second phase of the evaluation process. It is also undisputed
that
the sole reason advanced by the first respondent for not awarding the
tender to the applicant was the fact that the applicant
had not
submitted completion certificates for purposes of proving its
experience in respect of similar projects. The first respondent
revealed that non-submission of completion certificates resulted in
the applicant being allocated zero points for the key staff
and
experience component of the functionality criteria, which in turn led
to the conclusion that the applicant did not achieve
the minimum
threshold of 60% on functionality, resulting in the applicant’s
disqualification from any further evaluation.
[9]
The nub of the applicant’s case is that the submission of
completion certificates was not stipulated as one of the requirements
for the tender and, as a result, its subsequent disqualification from
the tender process on account of a requirement that was not
disclosed
to tenderers was unfair, irrational and unlawful. The applicant
further asserts that the decision to award the tender
to the second
respondent violated its right to participate in a tender process that
is transparent and fair and falls to be reviewed
and set aside.
ISSUE
TO BE DECIDED
If
so,
caedit
questio.
If
not, then the next leg of the enquiry would be to consider whether
the applicant’s disqualification from further evaluation
on the
basis of non-submission of these completion certificates constituted
a reviewable irregularity that warrants the setting
aside of the
tender award.
APPLICABLE
LAW
[11]
Section 217 of the Constitution
[8]
enjoins a constitutionally fair, equitable, transparent, competitive
and cost-effective procurement system. The legislative framework
under that section provides the context within which judicial review
of state procurement must be assessed.
[9]
Given the fact that a decision to award a tender constitutes
administrative action, the provisions of the Promotion of
Administrative
Justice Act 3 of 2000 (PAJA) apply, thus granting a
cause of action for the judicial review of tender processes.
[10]
[12]
Section 6 of PAJA provides as follows:-
“
Judicial
review of administrative action
(1)
Any person may institute proceedings in a court or a tribunal for the
judicial review of an administrative action.
(2)
A court or tribunal has the power to judicially review an
administrative action if-
(a)
the
administrator who took it-
(i) was
not authorised to do so by the empowering provision;
(ii)
acted under a delegation of power which was not authorised
by the empowering provision; or
(iii) was
biased or reasonably suspected of bias;
(b)
a
mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
(c)
the
action was procedurally unfair;
(d)
the
action was materially influenced by an error of law;
(e)
the
action was taken-
(i) for
a reason not authorised by the empowering provision;
(ii) for
an ulterior purpose or motive;
(iii)
because irrelevant considerations were taken into account or relevant
considerations were not considered;
(iv) because
of the unauthorised or unwarranted dictates of another person or
body;
(v) in
bad faith; or
(vi) arbitrarily
or capriciously;
(f)
the
action itself-
(i) contravenes
a law or is not authorised by the empowering provision; or
(ii) is
not rationally connected to-
(aa)
the
purpose for which it was taken;
(bb)
the
purpose of the empowering provision;
(cc)
the
information before the administrator; or
(dd)
the
reasons given for it by the administrator;
(g)
the
action concerned consists of a failure to take a decision;
(h)
the
exercise of the power or the performance of the function authorised
by the empowering provision, in pursuance of which the administrative
action was purportedly taken, is so unreasonable that no reasonable
person could have so exercised the power or performed the function;
or
(i)
the
action is otherwise unconstitutional or unlawful.
(3)
If any person relies on the ground of review referred to in
subsection (2)
(g)
, he or she may in respect of a failure to
take a decision, where-
(a)
(i) an
administrator has a duty to take a decision;
(ii) there
is no law that prescribes a period within which the administrator is
required to take that decision;
and
(iii) the
administrator has failed to take that decision, institute proceedings
in a court or tribunal for judicial
review of the failure to take the
decision on the ground that there has been unreasonable delay in
taking the decision; or
(b)
(i) an
administrator has a duty to take a decision;
(ii) a
law prescribes a period within which the administrator is required to
take that decision; and
(iii) the
administrator has failed to take that decision before the expiration
of that period, institute proceedings
in a court or tribunal for
judicial review of the failure to take the decision within that
period on the ground that the administrator
has a duty to take the
decision notwithstanding the expiration of that period.
”
APPLICATION
OF THE LAW TO THE FACTS
[13]
The first respondent contended that the case brought by the applicant
is an appeal dressed up as judicial review as it is directed
only at
the correctness or otherwise of the first respondent’s decision
and not at the irregularities. This argument is negated
by paragraph
10.2 of the first respondent’s own heads of argument, where it
is stated that “the applicant states that
the point-scoring
exercise is seriously tainted by irregularity”. In any case,
the self-explanatory contents of the applicant’s
founding
affidavit serve to refute this argument. The first respondent’s
reliance on the case of
Minister
of Co-Operative Governance and Others v Wezizwe Feziwe Siqcau &
Other
[11]
is therefore clearly misplaced.
[14]
The first respondent further argued that the applicant’s
reference to Rule 53 of the Uniform Rules in its urgent application
and in its Notice of Motion relating to this review application
confirms that this application is being brought in terms of the
common law and not PAJA and consequently precludes the granting of
PAJA remedies. This contention holds no water because the applicant’s
reference to the procedure laid out in Rule 53 cannot be equated to
an irrevocable intention to bring the review in terms of the
common
law as opposed to PAJA. The applicant’s reliance on PAJA is
evident from several averments made in its founding affidavit.
The following averment made by the applicant in its Founding
Affidavit refutes the first respondent’s argument:- “…Down
Touch [the applicant] seeks the review and setting aside of an
administrative action taken by the first respondent to award the
bid
… to the second respondent. This application is launched in
terms of Section 6 and 8 of the Promotion of Administrative
Justice
Act 3 of 2000 (PAJA).” The first respondent’s criticism
of the applicant’s application as being “generalised”,
“all over” and “overbroad” has no merit.
[15]
With regards to the merits of the review application, i
t
is necessary to consider whether the evidence on record establishes
the factual existence of contraventions of PAJA, and whether
there is
justification for the setting aside of the award. Of great importance
is whether there is any evidence showing that the
submission of
completion certificates was one of the requirements of the tender.
The
first respondent filed the record of decision (ROD) which included
the ITB, Tender Data, the applicant and the second respondent’s
respective bids, the minutes of the Bid Evaluation Committee, the Bid
Adjudication Committee as well as the notes made by the chairperson
of the Bid Evaluation Committee. Incidentally, the minutes of
the site-briefing meeting were not part of this record. They
were
eventually obtained by the applicant from the engineers and were
handed up during the proceedings.
[16]
The first respondent’s written requirements in respect of a
tenderer’s experience appear on page 182 and 199 of
the ROD.
Clause F.2.14 of the additions and variations of the Standard and
Special Conditions of the Tender provides as follows:-
“
[Tenderers]
accept that the Employer [first respondent] shall in the evaluation
of tender offers take due account of the tenderers’
past
performance in the execution of similar engineering works of
comparable magnitude, and the degree to which he possesses the
necessary technical, financial and other resources to enable him to
complete the works successfully within the contract period.
Satisfy the Employer and Engineer as to his ability to perform and
complete the works timeously, safely and with satisfactory quality
and furnish details in section 12.2 of contracts of a similar nature
and magnitude which they have successfully executed in the
past.”
No reference whatsoever is made to submission of completion
certificates as a requirement.
[17]
In clause F.2.23 of the same document, it is stated that a tenderer
is required to submit all certificates / information as
listed in the
Schedule of Tender Compliance (Form F1). In Form F1, it is specified
that the relevant form that serves as an aide
to ensure a tenderer’s
compliance with the completion of the “returnable forms and
schedules” is Form D5. The
requirements in Form D5 are set out
as follows:-
“
Form
D5
Note
to tenderer:
The
tenderer shall provide details of previous experience required for
this project.
The
experience of the Tenderer or joint venture partners in a consortium
will be evaluated on the basis of experience in similar
projects or
similar areas and conditions in relation to the scope of work
required for this project.
Tenderers
should briefly provide details of the 5 most relevant projects and
status of project
”
.
[18]
Despite the fact that various clauses in the tender documents make
reference to how a company’s experience would be assessed,
there is no reference to submission of completion certificates being
one of the requirements. The respondent’s counsel’s
concession that no such requirement was stipulated in any of the
tender documents was thus correctly made.
[19]
The first respondent maintains that a requirement pertaining to the
submission of completion certificates was communicated
to tenderers
at the compulsory site-briefing meeting. The applicant denies such
communication and asserts that in any event the
issuing of such
instruction at a site meeting would in any case have been unlawful
since it was not specified in the Invitation
to Tender.
[20]
The first respondent’s municipal manager stated in his
answering affidavit that one of the members of the Bid Evaluation
Committee who attended the site briefing meeting, namely Mr
Springkaan, would confirm that
all
bidders “were advised of the completion certificates at the
briefing session”. However, Mr Springkaan, a member of
the Bid
Evaluation Committee who professed to have been present at that
meeting, did not make this specific assertion in his confirmatory
affidavit. He merely stated that “the applicant failed to
attach the completion certificates even though they were
informed of
their importance at the briefing meeting.” There are thus
two different versions from the first respondent
on this critical
aspect. What was allegedly conveyed to the tenderers at that meeting
is unclear. Significantly, the minutes of
the site-briefing do not
make any reference whatsoever to the submission of completion
certificates being a requirement for the
evaluation of a company’s
experience. On the contrary, these minutes refer back to the
qualitative and qualitative criteria
referred to in forms A-E, of
which Form 1 and D
[12]
seem to be the most relevant. Under these circumstances, the first
respondent’s submission that Mr Springkaan’s allegation
suffices as proof of this requirement despite not being reflected in
the minutes of the site briefing meeting simply does not hold
water.
The first respondent’s bare averment that seven of the nine
contractors whose contracts were found responsive
submitted
completion certificates is neither here nor there, in my view,
especially because the ROD shows that the applicant was
not the only
company that was allocated zero points for non-submission of
completion certificates.
[21]
In my view, the facts set out above constitute evidence which, when
considered in its totality, does not support a conclusion
that the
submission of tenderers’ completion certificates was conveyed
as one of the tender requirements to the tenderers.
Under such
circumstances, disqualifying the applicant from further evaluation
based on an alleged non-compliance with a non-existent
requirement
constituted an irregularity.
[22]
It is undisputed that the applicant submitted a list detailing its
completed projects and attaching CV’s of its key personnel.
It
is also not contested that the first respondent was the client in at
least seven of those projects. The first respondent, as
the client
and signatory to those completion certificates, would therefore have
known the details pertaining to the magnitude of
the projects and how
the applicant conducted itself in the execution thereof.
Notably, some of these completed projects were
of a far bigger
magnitude than that of the project tendered for. The first respondent
would have had first-hand knowledge of the
applicant’s
technical ability and resources to successfully finalise the Works
within the contract period. The decision to
disqualify the applicant
despite being in possession of this critical information was
therefore irrational.
[23]
In an attempt to underplay these non-compliances, the first
respondent submits that the applicant is making an error by
considering
procedural requirements on their own merits instead of
doing so “through the lens of the outcome”. Although the
respondent’s
heads of argument correctly quote from various
passages in the
AllPay
1 judgment,
[13]
it seems to me that the first respondent’s argument is based on
dicta
of the SCA judgment which the
AllPay
1 judgment
overturned. In that judgment, the Constitutional Court rejected the
approach followed by the SCA towards the reviewing of the tender.
The
SCA had stated that public interest dictated that a procurement
process should not be invalidated for minor, inconsequential
flaws
and declined to interfere with the awarding of the tender on the
basis that even if the proven irregularities indeed existed,
they had
to be considered through the lens of the inevitability of the
particular outcome that the tender was intended to achieve.
[24]
The Constitutional Court held that the suggestion that
“inconsequential irregularities” in a tender process were
irrelevant when reviewing the tender amounted to a conflation of the
test for irregularities and their import. It held that an
assessment
of the procurement process must be independent of the outcome. The
AllPay
1 judgment
recognises the important role that compliance with specified
procedural requirements plays in levelling the playing fields by
ensuring equal and fair treatment of all bidders and simultaneously
acknowledges that the purpose of a fair process is to ensure
the best
outcome of the tender process:- The following extract from that
judgment is apposite: “
Deviations
from fair process may themselves all too often be symptoms of
corruption or malfeasance in the process. In other words,
an unfair
process may betoken a deliberately skewed process. Hence insistence
on compliance with process formalities has a three-fold
purpose:
(a)it ensures fairness to participants in the bid process; (b) it
enhances the likelihood of efficiency and optimality
in the outcome;
and (c) it serves as a guardian against a process skewed by corrupt
influences
.”
[14]
[25]
That court went on to hold that the proper approach is to establish
factually whether an irregularity occurred and if so, the
irregularity must be evaluated to determine whether it amounts to a
ground of review under PAJA. Where appropriate, the materiality
of
any deviance from legal requirements must be linked to the purpose of
the provision before concluding that a review ground under
PAJA has
been established. Relying on that finding, the first respondent
contends that the court ought not to tamper with the first
respondent’s decision to award the tender to the second
respondent because the purpose of the tender was achieved. It submits
that this court must weigh the disruptive effect of the granting of
the review application as against “the legitimate compelling
and rational goal the upgrading of Dr Ngoma Road and Storm Water
Management seeks to achieve.” The first respondent
urged
the court to strike a balance between the applicant’s limited
commercial interests as against the first respondent’s
societal
interests.
[26]
This
court is alive to the fact that the need for the upgrading of roads
is indeed a crucial service that needs to be delivered
to
communities. This, however, is not to say that such projects must be
undertaken at all costs, to the extent of dispensing with
the checks
and balances that procurement processes have put in place with a view
to enhancing the likelihood of efficiency and
optimality in the
outcome of the tender process. A consideration of the ITB and the
Tender Data makes it clear that t
he
overarching objective is to ensure that the tender is awarded to a
company that not only has technical capacity and resources
for the
completion of the Works within the contract period but one that can
do so cost effectively. It is common cause that the
difference
between applicants bid and the second respondent’s one is
R847 667.76. Under such circumstances, it cannot
be said that
the purpose of the stipulated tender requirements was
substantively
achieved.
I
can do no better than to simply re-iterate what was stated in the
AllPay
1 judgment
:
“Once a ground of review under PAJA has been established, there
is no room for shying away from it”.
[27]
I am therefore satisfied that the applicant has, in its review
application adduced evidence that has conclusively shown that
the
first respondent’s decision to award the tender to the second
respondent was unfair, irrational and unlawful. The applicant
has
established a ground of review as contemplated in section 6 of PAJA.
Since the purpose of the tender requirements has not been
achieved,
the award of the tender to the second respondent must be set aside.
REMEDY
[28]
Section 8(1)
[15]
of PAJA provides a wide range of “just and equitable”
remedies following upon a declaration of unlawful administrative
action in proceedings for judicial review in terms of PAJA. In
exceptional circumstances, section 8(1)(c)(ii)(aa) affords
a court
the discretion to make a substitution order. The
Allpay
1 judgment
[16]
lays down that the remedy stage is where proper consideration must be
given to the public interest in the consequences of setting
the
procurement process aside.
[29]
In the case of
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and Another
[17]
,
the Constitutional Court acknowledged that substitution remains an
extraordinary remedy. It sounded a warning that “a case
implicating an order of substitution… requires courts to be
mindful of the need for judicial deference and their obligations
under the constitution.” The court stated that in conducting an
exceptional circumstances enquiry courts must recognise that
there
are certain factors that hold greater weight. Although the court
alluded to several factors, it emphasized the importance
of two,
namely (i) whether a court is in as good a position as the
administrator to make the decision; and (ii) whether the decision
of
an administrator is a foregone conclusion. These two
factors must be considered cumulatively. The court emphasised
that
the exceptional circumstances enquiry “requires an examination
of each matter on a case by case basis that accounts
for all relevant
facts and circumstances.”
[30]
The applicant avers that the remedy that this court ought to grant is
one substituting the first respondent’s decision
by awarding
the tender to it (applicant). The applicant avers that had it
not been disqualified from evaluation, it would
have obtained the
highest score for the tender and the tender would therefore have been
allocated to it. It avers that it
would, on the basis of having
tendered for the lowest price, have been allocated 90 points for
price and 9 points for BBBEE status
which means that it would have
scored 99 points. It argues that the closest the second
respondent comes would have been 95
points. The first respondent
submits that the applicant has not made out an adequate case for the
granting of a substitution order.
[31]
It needs to be pointed out that the applicant has not substantiated
how the final point allocation would have been done, and
how it came
to the total of 99 points for itself and 95 points for the second
respondent. The additions and variations of the Standard
Conditions
of Tender stipulate that Method 4 shall be applicable to this tender.
This method specifies a certain formula which
takes the comparative
offer into account. The comparative offer is defined in the tender
documents as “the tenderer’s
financial offer after all
tendered parameters that will affect the value of the financial offer
have been taken into consideration
in order to enable comparisons to
be made between offers on a comparative basis”. None of the
parties has made averments
as to what these parameters are and this
court cannot make conclusions based on assumptions. Without pertinent
information pertaining
to these parameters, this court is not in as
good a position as the first respondent to make the decision. Under
such circumstances,
the applicant’s assertion that the
determination of the final score is a simple calculation of points
that this court can
do is without foundation.
[32]
In the absence of pertinent information that covers all the relevant
parts of the applicable formulae and equations, a remedy
of
substitution becomes impractical even when certain circumstances may
be calling for this extraordinary remedy. It follows that
the correct
remedy would be to remit the matter back to the first respondent’s
Bid Evaluation Committee for reconsideration
notwithstanding the
misgivings that are alluded to below pertaining to the Bid Evaluation
Committee.
[33]
The minutes of the Bid Evaluation Committee filed in both the urgent
application and the review application are incomplete
as paragraphs
7.1 - 7.3 have not been included in the ROD. It is quite evident from
the sketchy report of the chairperson of that
committee that the Bid
Evaluation Committee was not
au
fait
with
the basics of point-scoring even where a formula had been prescribed.
Although one of the members of this committee (Mr Springkaan)
deposed
to an affidavit, there is a paucity of information pertaining to how
the committee evaluated each bidder’s ability
to execute the
contract, which is one of the tasks a Bid Evaluation Committee is
enjoined to do. As stated before, the first respondent
appointed
experts in the construction industry, namely Tsela Tshweu Consulting
Engineers, as its agent in order to assist the Bid
Evaluation
Committee with the evaluation of the tenders. It can be
accepted that the first respondent made this appointment
advisedly
even though it is undisputed that the agent’s recommendations
are not binding. I doubt that Tsela Tshweu Consulting
Engineers
agreed to do this service for the first respondent free of charge. It
is undisputed that Tsela Tshweu Consulting Engineers
submitted a
report regarding the evaluation process. The fact that the Bid
Evaluation Committee decided to proverbially throw the
baby out with
the bath water by hastily jettisoning the entire technical report for
the bareboned reasons it has advanced
is extremely
disconcerting and sacrifices the constitutionally enshrined right to
fair, equitable, transparent, competitive and
cost-effective
procurement processes at the altar of expedience. Such conduct is no
doubt responsible for the flood of tender-related
review applications
that are becoming a common feature at our courts, which invariably
delays the commencement or finalisation
of projects that serve to
advance service delivery.
[34]
The Bid Evaluation Committee ought to have properly engaged Tsela
Tshweu on how the final evaluation and scoring was supposed
to be
done. This is clearly an area that needs expertise which they are
demonstrably lacking. The importance of an engagement with
the
appointed agent is that it will enable the Bid Evaluation Committee
to make an informed recommendation to the Bid Adjudication
Committee
and the Bid Adjudication Committee will in turn be able to properly
consider the Bid Evaluation Committee’s recommendation.
Under
the circumstances, it follows that the correct remedy would be to
remit the matter back to the first respondent’s Bid
Evaluation
Committee with directions enjoining that Committee to seek the
agent’s input pertaining to the correct application
of the
90/10 evaluation criteria applicable to this tender.
[35]
With regards to costs, there is no basis for departing from the
general rule that costs should follow the result.
[36]
ORDER
1.
The
first respondent’s decision to award
Bid
22/2015: Upgrading of Dr Ngoma Road and Storm Water Management
to
the second respondent (Rembu Construction) is reviewed and set aside.
2.
The
matter is remitted to the first respondent’s Bid Evaluation
Committee for reconsideration.
3.
It is
directed that in considering all the tenders that were submitted, the
first respondent’s Bid Evaluation Committee shall
take due
cognizance of this court’s finding that (i) there was no
specific requirement obliging tenderers to submit completion
certificates as the only acceptable proof of company experience; (ii)
there was no lawful basis for disqualifying the applicant
in respect
of the functionality criteria.
4.
In
light of the order in clause 3 above, the Bid Evaluation Committee is
directed (i) not to disqualify any tenderer from further
evaluation
purely because of non-submission of completion certificates; (ii) to
consider the applicant’s technical capability
(company
experience) by having regard to its list of similar projects attached
to its tender documents.
5.
It is
further directed that the Bid Evaluation Committee shall seek the
input of the first respondent’s appointed agent, namely
Tsela
Tshweu Consulting Engineers on the implementation of the specified
method for allocation of points for price before making
any
recommendation to the Bid Adjudication Committee.
6.
The
first respondent is ordered to pay the costs of this application and
the costs of the urgent application that were reserved
in terms of an
order granted by this court on 24 March 2016.
___________________
M.
B. MOLEMELA, JP
I
concur.
________________
A.
F.
JORDAAN, J
On
behalf of applicant:
Adv. S. Grobler
Instructed by:
Peyer Attorneys
BLOEMFONTEIN
On
behalf of first respondent:
Adv. S. M. Lebala SC
with Adv. N KHooe
Instructed by:
Moroka Attorneys
BLOEMFONTEIN
/eb
[1]
See para [1] above
[2]
This is informed by the Broad-Based
Black
Empowerment Act 53 of 2003
. The empowerment points were
calculated in accordance with each bidder’s level of
certification.
[3]
The site-briefing meeting was held on
16 October 2016 before the closing date of the tender
[4]
The maximum score that could be
allocated for key personnel and experience was 35 points
[5]
The maximum score
that could be awarded for key personnel and experience was 5 points
[6]
The maximum score that could be
allocated for bank rating was 10 points
[7]
This is regulated by the
Local
Government: Municipal Finance Management Act, 56 of 2003
,
Municipal Supply Chain Management Regulations.
[8
]
Section 217 of the Constitution Act
108 of 1996.
[9]
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) (Allpay 1 Judgment)
[10]
2014
(1) SA 604
(CC) at para [41].
[11]
(40750/2014)
[2015] SAGPPHC 764 (20 November 2015).
[12]
See para [17]
[13]
See fn 5.
[14]
Id at para [27].
[15]
(1)
The court or tribunal, in proceedings for judicial review in terms
of section 6 (1), may grant any order that is just and
equitable,
including orders-
(a)
directing
the administrator-
(i) to give
reasons; or
(ii) to act in the
manner the court or tribunal requires;
(b)
prohibiting
the administrator from acting in a particular manner;
(c)
setting
aside the administrative action and-
(i) remitting the
matter for reconsideration by the administrator, with or without
directions; or
(ii) in exceptional
cases-
(aa)
substituting
or varying the administrative action or correcting a defect
resulting from the administrative action; or
(bb)
directing
the administrator or any other party to the proceedings to pay
compensation;
(d)
declaring
the rights of the parties in respect of any matter to which the
administrative action relates;
(e)
granting
a temporary interdict or other temporary relief; or
(f)
as
to costs.
[16]
a
t
para 22
[17]
2015 (5) SA 245
(CC).