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[2016] ZAGPPHC 274
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Afri-Infra (Pty) Ltd v City of Tshwane Metropolitan Municipality (19068/16) [2016] ZAGPPHC 274 (22 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
22/4/16
Case Number: 19068/16
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
AFRl-INFRA (PTY)
LTD APPLICANT
and
CITY OF TSHWANE
METROPOLITAN MUNICIPALITY RESPONDENT
Coram:
HUGHES
J
JUDGMENT
HUGHES J
[1] The applicant seeks
the relief set out below on an urgent basis. The relief sought as
appears in the notice of motion is as
follows:
"2.
That the respondent's decision not to appoint the
applicant in terms of RT004- 2014/15 -Tender for Framework Contract
for Professional
Civil Engineering for various projects in Tshwane(as
and when required for
a
(3)
year period ) is reviewed and set-aside;
3.
In
addition to the review and setting aside in terms of prayer
2,
the respondent be directed to appoint the
applicant in terms of RT004-2014! 15-Tender for Framework Contract
for Professional Civil
Engineering for various projects in Tshwane(as
and when required for
a
(3)
year period );
4. In the alternative,
and should the above Honourable Court not be willing to grant an
order in terms of prayer 3 supra, then and
in the event, an order
will be sought in the following terms:
4. 1 That subsequent
to the review and setting aside of the respondent's decision in terms
of prayer 2 supra, the matter be remitted
back to the respondent for
re adjudication which must be completed within 10 days and in
terms of
Section 8(1)
(c) (i) of the
Promotion of Administrative Justice Act 3 of 2000
, subject to such
conditions that are just and equitable, as may be determined by the
above Honourable Court;
5.
The
respondent is to pay the costs of this application."
[2] The applicant, a
company that provides a host of civil engineering services, has been
in a "long-standing relationship"
with the respondent, in
that the applicant by way of tenders granted in its favour, as far
back as 2008, has completed a number
of projects for the respondent.
[3] The respondent
published a tender notice on 27 February 2015 for the supply of
professional civil engineering services for various
projects in
Tshwane ·as and when required for a period of three years. The
bidders who submitted bids timeously and who
were eligible, were
placed on the respondent's a database. This database would be used by
the respondent from time to time when
it required the supply of
professional civil engineering services.
[4] The applicant was one
of those bidders who submitted its bid timeously to be place on the
respondent's database. However, it
was unsuccessful in its bid to be
placed on the respondent's database.
[5] That which follows
illustrates how the applicant established that it had not been placed
on the respondent's database.
[6] On 16 November 2015
the applicant sent a request to the respondent enquiring if it had
been successful in its bid and if not
the reason thereof.
[7] On 18 November 2015
the applicant wrote for an extension on the contracts it had already
been appointed to in terms of previous
successful tenders submitted.
Following this correspondence, on 3 December 2015, a request was made
by the applicant for the respondent's
to respond to its previous
requests.
[8] Now on 8 December
2015, Mr Bongani Mntambo, the Head of Supply Chain Management
department, wrote to the applicant advising
"that the
previous contract will not be extended as there was
a
tender
in place to replace the expired one."
In essence this was a
response to the applicant's request to extend their previous contract
which was currently in place.
[9] On the very same day
the applicant requested the information it had sought in their letter
of 13 November 2015. This information
covered all aspects of
submission and adjudication of the current bid.
[10] On 11 December 2015
the applicant responded to the respondent thanking them for the
information received however, it advised
the respondent that the
information was lacking, in that, the scorecards requested were not
attached. The applicant requested the
respondent to respond by 18
December 2015.
[11] On 18 December, Mr
Graham Gumbo, an employee in the Supply Chain Management unit of the
respondent, provided the information
sought.
[12] On receipt of the
scorecards the applicant wrote to the respondent on the very same day
advising that it had been wrongly scored
in respect of functionality
as it attained a score below 65%, which was required. In the
aforesaid correspondence the applicant
requested the respondent to
respond by 8 January 2016.
[13] The respondent
replied on 22 January 2016 advising of the reasons why the
applicant's score was below that required and that
the calculation
thereof was in fact correct.
[14] The reasons inter
alia were that the applicant had failed to furnish necessary
information and as a result, the evaluation
of the applicant was
correctly executed. The information lacking pertained to the
submission of the required RD.03 form. Instead
the applicant
submitted its own form which was purported to be a RD.03 which
differed from the municipality's tender document.
In doing so the
applicant failed to submit what was required in one column of the
applicant's tender document being
'value of work and value of
fees'.
The respondent contends that the purported form of the
respondent only provided one value instead of two as was required by
the
tender document. Due to the aforesaid the respondent concluded
that the applicant's 'failed
to furnish all the information that
was required under the column titled "value of work and value of
fees". Therefore,
he (sic the) score allocated to your client is
accurate.'
[15] On 1 February 2016
the applicant in reply to the above sent correspondence to the
respondent attaching an ISO 9001 Certificate
required to qualify on
'Quality Control Procedure'.
It advised the respondent that it
should have obtained full marks of 10 in this category as it had
submitted its certificate. It
also requested a response from the
respondent by 5 February 2016. Further correspondence was sent out on
8, 9, 11,12,16,18 and
23, February 2016 requesting a response from
the respondent to conduct the necessary adjustment and place the
applicants on the
database.
[16] On 2 March 2016 the
respondent responded stating
'Your client's complaint will be
processed through the dispute resolution procedure. A further
correspondence will be addressed
in due course'.
That being the
case the applicant brought this application on an urgent basis.
[17] In my view the
applicant was justified in bringing this application on an urgent
basis as it did not have a conclusive view
from the respondent as
regards its position on the data base from which service providers
would be elected. This matter is such
that begs for finality to be
key to proceedings as it hinders the way forward for both parties and
those who had been placed on
the database.
[18] Now having made a
request for the orders it sought in the notice of motion the
respondent in its answering affidavit acceded
to the alternative
relief sought by the respondent's. They did so in their answering
affidavit dated 24 March 2016 where they explain
the reason for the
delay in supplying their answering affidavit. In the main the reason
was that
'the City took advice to settle the matter by agreeing to
the relief sought in paragraph 4 of the applicant's notice of
motion'.
[19] In the circumstances
above the respondent capitulated to the applicant's case in respect
of its alternative prayer in paragraph
4 of the applicant's Notice of
Motion.
[20] In addition the
respondent conceded that the errors made during the adjudication of
the bids warrant the grant of the order
as set out in paragraph 2 of
the Notice of Motion.
[21] These two
concessions to my mind put to bed this entire dispute and they are
orders duly sought by the applicant itself in
its Notice of Motion.
However I have to deal with why the alternative order (Para 4) should
be granted as opposed to the order
sought in paragraph 3 of the
Notice of Motion.
[22] The respondent
argues that the order sought in paragraph 3 of the Notice of Motion
is not competent in law. That it seeks to
violate the basic
principles of separation of powers in its request for the Court to
appoint the applicant as opposed to the Court
directing the
respondent to so appointing the applicant.
[23] Usually a Court in
administrative review proceedings will remit a matter for
reconsideration however a Court does have the
power to grant a
substitute order in an exceptional case, in terms of section 8
(1)(c)(ii)(aa) of the Promotion of Administrative
Justice Act 3 of
2000 (PAJA). The cases of an exceptional circumstance are where it's
a foregone conclusion, where bias or competence
has occurred in the
adjudication process and where the Court is in a good enough position
as an administrator to make the decision.
See
Trencon Construction
v Industrial Development Corporation
2015 (5) SA 245
at 256 para [38]
to [40]; Johannesburg City Council v Administrator, Transvaal, and
Another 1969 (2)SA 72(T)at 760-G.
[24] Let us for one
minute not lose sight of the fact that on any given day the Court
would remit to the administrator as they are
in a better position to
adjudicate rather than substitute make the decision, there has to be
something extraordinary for a Court
to do so.
[25] The applicant argues
that it has complied with the requirements of the tender and as such
it should be awarded the points that
would allow it to be appointed
to the database panel. It further argues that this Court with the
facts before it is in a position
to grant a substitute order as it's
a forgone conclusion that it should have been appointed.
[26] On the other hand
the respondent's argue that even in the face of their concession of
the wrong points allocated, there is
still an evaluation that needs
to be conducted in respect of technicality,
'NB" Only those
tenders who score a minimum of 65 points in respect of the following
criteria are eligible to be technically
evaluated.'
This appears
at the foot of the scorecards.
[27] I concur with the
argument posed by the respondent that even if the applicant's gained
the requested 65%, this was merely an
entry to the following stage of
being evaluated. The following stage being on a technical evaluation.
The score cards, in my view,
are instructive as regards this next
phase of evaluation. In the circumstances no room, in my mind, is
afforded for a Court to
use its discretion and proceed to evaluate a
bidder on the technical requirement necessary. In any event as the
applicant did not
even proceed to this technical evaluation level,
the applicant was not evaluated at all on this aspect. That being the
case the
applicant has to have been evaluated for this Court to
substitute the outcome of the evaluation conducted to allow it to be
appointed
to the database.
[28] In the circumstances
set out above would this court be in a good enough position as the
administrator to make a decision on
the technical evaluation, with
the applicant having not been evaluated, would a foregone conclusion
be established, would the applicant
be able to illustrate bias or
incompetence on an evaluation not conducted as yet and lastly, would
the appointment of the applicant
without the technical evaluation
being conducted be just and equitable to the respondent and other
bidders who can to undergo such
an evaluation? My conclusion to all
that is suggested above in this paragraph is a resounding no. See
Trencon para [44] to [47]; Bata Star Fishing (Pty) Ltd v Minister
of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490(CC)
at
[40]
.
[29] In conclusion prayer
3 in the Notice of Motion sought by the applicant is indeed not
competent in law and as such falls to
be dismissed. It is prudent,
just, equitable and proper in these circumstances to review and set
aside the said decision to exclude
the applicant from the
respondent's database, coupled with an order to remit the matter for
re-adjudication and consideration to
be completed within 10 days in
terms of section 8(1)(c)(1) of PAJA.
[30] With regards to the
issue of costs the process to which the respondent capitulated to
after the issuing of this urgent application
reflect in my mind that
the applicant was successful to an extent.
[31] When the respondent
made the concessions that it did the applicant should have taken same
as these were orders sought by the
applicant, however the applicant
dug its heel and for this, I am of the view, that they should forfeit
the costs occasion for the
hearing of the matter for two days, as it
could have been concluded prior to the hearing of the matter in
court.
[32] In the circumstances
the respondent is ordered to pay the costs of the applicant for
bringing this urgent application such
costs are to exclude the
appearance in court for the two days.
[33] Consequently the
following order is made:
[33.1] The matter is
urgent and the Rule 6 (12) (a) of the Uniform Rules of Court are
dispensed with;
[33.2] The respondent's,
CITY OF TSHWANE METROPOLITAN MUNICIPALITY, decision not to appoint
the applicant, AFRl-INFRA GROUP (PTY)
LTD, in terms of RTD04-2014/15
-Tender for Framework Contract for Professional Civil Engineering for
various projects in Tshwane(as
and when required for a (3) year
period ) is reviewed and set-aside;
[33.3] That the
applicant's order sought to be appointed in terms of RTD04- 2014/15
-Tender for Framework Contract for Professional
Civil Engineering for
various projects in Tshwane(as and when required for a (3) year
period ), is dismissed;
[33.4] That subsequent to
the review and setting aside of the respondent's decision in terms of
prayer 2 supra, the matter be remitted
back to the respondent for re
adjudication which must be completed within 10 days and in terms of
Section 8(1)
(c) (i) of the
Promotion of Administrative Justice Act 3
of 2000
; and
[33.5] The respondent is
ordered to pay for the costs of this application excluding the costs
for appearing in court for the hearing
of the application for two
days.
_____________________________
W. Hughes
Judge of the High Court
Gauteng, Pretoria
Delivered: 22 April 2016