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[2014] ZAGPPHC 294
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Valozone 268 CC and Others v Minister of Education and Others (3285/14) [2014] ZAGPPHC 294 (26 May 2014)
IN
THE GAUTENG DIVISION OF SOUTH AFRICA . PRETORIA
CASE NO: 3285/14
DATE HEARD: 26 May
2014
DATE HANDED DOWN: 26
May 2014
IN THE MATTER
BETWEEN:
VALOZONE 268 CC
…...............................................................................................................................................................................................................................
1
st
APPLICANT
(REGISTRATION
NUMBER: 2011/101543/23
SAMOLLO TRADING
(PTY)
LTD
.............................................................................................................................................................................................................
2
nd
APPLICANT
(REGISTRATION
NUMBER: 2011/001884/07)
SIAKHANYA BUSINESS
ENTERPRISES
CC
..........................................................................................................................................................................................
3
rd
APPLICANT
(REGISTRATION
NUMBER: 2003/092388/23)
ICONIC VENTURES
(PTY) LTD
….............................................................................................................................................................................................................
4
th
APPLICANT
(REGISTRATION
NUMBER: 2011/002496/07)
IBHOKO TRANSPORT AND
TRADING (PTY) LTD
….............................................................................................................................................................................
5
th
APPLICANT
(REGISTRATION
NUMBER: 2013/009674/07)
AN YENDE
CC
...............................................................................................................................................................................................................................................
6
th
APPLICANT
(REGISTRATION
NUMBER: 2006/090343/23
ASITHUTHUKENI
BUSINESS ENTERPRISE
CC
.......................................................................................................................................................................................
7
th
APPLICANT
(REGISTRATION
NUMBER: 2004/030371/23)
AND
MINISTER OF
EDUCATION
....................................................................................................................................................................................................................
1
st
RESPONDENT
THE PREMIER
…......................................................................................................................................................................................................................................
2
nd
RESPONDENT
MPUMALANGA
PROVINCIAL GOVERNMENT
MEMBER OF THE
EXECUTIVE
COUNCIL
..........................................................................................................................................................................................
3
rd
RESPONDENT
MPUMALANGA
DEPARTMENT OF EDUCATION
HEAD OF DEPARTMENT
…..................................................................................................................................................................................................................
4
th
RESPONDENT
MPUMALANGA
DEPARTMENT OF EDUCATION
ASCUL CONSTRUCTION
CC
…...........................................................................................................................................................................................................
5
th
RESPONDENT
(REGISTRATION
NUMBER: (1998/043004/23)
LWATI VS
TRADING
...............................................................................................................................................................................................................................
6
th
RESPONDENT
(REGISTRATION
NUMBER: 2001/083554/23)
JOYSPRING TRADE AND
INVESTMENT 14 (PTY) LTD
….................................................................................................................................................................
7
th
RESPONDENT
(REGISTRATION
NUMBER: 2010/005338/07)
MAI PI TRADING 46
…............................................................................................................................................................................................................................
8
th
RESPONDENT
(REGISTRATION
NUMBER: 2003/059594/23
PROCLASS TRADING AND
PROJECTS
…............................................................................................................................................................................................
9
th
RESPONDENT
(REGISTRATION
NUMBER: 2005/151949/23
TRIPONZA TRADING 804
CC
…............................................................................................................................................................................................................
10
th
RESPONDENT
(REGISTRATION
NUMBER: 2003/08269/23
DAPHM TRADING CC
….........................................................................................................................................................................................................................
11
th
RESPONDENT
(REGISTRATION
NUMBER: 2006/093665/23)
GUGULEZWE LETHU
LIGISTICS CC
…...................................................................................................................................................................................................
12
th
RESPONDENT
(REGISTRATION
NUMBER: 2005/158910/23)
MATHATA AND GIVEN
TRADING
…........................................................................................................................................................................................................
13
th
RESPONDENT
(REGISTRATION
NUMBER: 2009/038517/23)
THUKGELO
CONSTRUCTION
& BUILDING
..............................................................................................................................................................................................
14
th
RESPONDENT
(REGISTRATION
NUMBER: 2001/024754/23)
MBETSE LADIES (PTY)
LTD
............................................................................................................................................................................................................................
15
th
RESPONDENT
(REGISTRATION
NUMBER: 2013/134981/07)
JUDIES CATERING
SERVICE CC
…..............................................................................................................................................................................................................
16
th
RESPONDENT
(REGISTRATION
NUMBER: 2005/163665/23)
BASADZI PELE
MANAGEMENT CONSULTING
& PROJECTS
CC
...............................................................................................................................................................................................................................................
17
th
RESPONDENT
(REGISTRATION
NUMBER: 2005/118023/23)
VLAKBULT TRADING
ENTERPRISE CC
….......................................................................................................................................................................................................
18
th
RESPONDENT
(REGISTRATION
NUMBER: 2007/086681/23)
MFUMELELO BUSINESS
ENTERPRISE
CC
.......................................................................................................................................................................................................
19
th
RESPONDENT
(REGISTRATION
NUMBER: 2002/041550/23)
KHANYAKWEZI TRADING
CC
...........................................................................................................................................................................................................................
20
th
RESPONDENT
(REGISTRATION
NUMBER: 2007/160176/23)
SINGITA CIVIL WORKS
& BUILDING
CONSTRUCTION (PTY)
LTD
............................................................................................................................................................................................................................
21
st
RESPONDENT
(REGISTRATION
NUMBER: 2012/161426/07)
THE PUBLIC
PROTECTOR
..............................................................................................................................................................................................................................
22
nd
RESPONDENT
JUDGMENT
JANSE VAN
NIEUWENHUIZEN. J
[1] This is an
application for the review of the awarding of Bid Number:
EDU/069/13/MP for the appointment of service providers
to manage,
operate warehouses and supply bulk foodstuffs, fresh vegetables and
fruit to schools in the Mpumalanga Province.
[2] The applicants
and the fifth to twenty first respondents all submitted bids in
respect of the tender.
[3] The fifth to
twenty first respondents were the successful tenderers.
[4] The applicants
contend that several material irregularities occurred during the
adjudication of the various bids.
[5] I pause to
mention that the relief claimed by the applicants at present is in
terms of Part II of the notice of motion. Part
I dealt with interim
relief pending the finalisation of Part II of the notice of motion.
Although the first to fourth respondents
("the respondents")
filed a notice of intention to oppose the relief claimed by the
applicants, they did not file answering
affidavits and an order in
terms of Part I of the notice of motion was granted by Preller J on 4
February 2014.
[6] The respondents
have similarly failed to file affidavits in answer to the relief
claimed by the applicants in Part!! of the
notice of motion and I
proceed to deal with the matter on the facts and allegations
contained in the applicants' affidavits.
ALLEGED MATERIAL
IRREGULARITIES
[7] Mr Vorster,
counsel who drafted the heads of argument on behalf of the
applicants, has set out in detail, in the heads, the
alleged
irregularities that occurred during the adjudication of the bids. I
find it apposite to refer to the following extract
from his heads in
this regard:
"3.
3.1.
The alleged irregularities should be viewed against the backdrop of
the 2
nd
respondent having being called upon
,
and directed by an
order of court to dispatch the record of proceedings.
3.2. The record
of proceedings should at the very least have comprised of the
respective bid documents of the applicants, and the
5
th
to
21
st
respondents.
3.3. The
respondents failed to include the successful bidders' bid documents
as part of the record.
3.4. It is
impossible for the applicants to establish whether the successful
bidders’ submissions complied with the bid criteria
in any
material respects in the absence of the actual bid documents.
3.5. It is
further impossible to compare the successful bidders’
submissions to those of the applicants.
3.6. One would
also expect that the respective bid committees would have kept
written records (normally in the form of reports and
minutes of the
meetings held) of all actions, especially in light of the value of
the tender under review.
3.7. All
decisions had to be sufficiently justified and documented to prevent
and monitor discriminatory behaviour.
3.8. The absence
of these documents from the record justifies one of two inferences:
3.8.1. these
documents do not exist, which is an irregularity in itself;
3.8.2. these
documents were deliberately withheld to conceal impropriety in the
tender process, and obfuscate the applicants’
efforts to
establish grounds for review.
3.9. This
stratagem forced the applicants to rely on inferences and conjecture
from external sources to establish grounds for review,
and
constrained the applicants from raising issues relating to process to
prove symptoms of corruption or malfeasance in the process.
3.10. The
applicants invited the 2
nd
, 3
rd
and 4
th
respondents to place before court the following documents:
3.10.1.
copies of the compulsory returnable documents in respect of the bids
of each of the successful bidders as provided for in
paragraphs 7.1
-
7.7 of the bid
document;
3.10.2. copies of
support documents required for the evaluation process in respect of
the bids of each of the successful bidders
as provided for in
paragraph 7.8-7.15 of the bid document;
3.10.3. copies of
the minutes of the respective bid committees; but to no avail.
4.
4.1. All tenders
submitted within the set deadline should have been treated equally.
4.2. They must
have been evaluated on the basis of the same terms, conditions and
requirements set out in the tender documents,
and by applying the
same pre-announced award criteria.
4.3. As is
apparent from paragraph 6 of the submission from the bid compliance
committee to the chairperson of the bid evaluation
committee, a
number of bidders were disqualified, because they failed to submit
letters of good standing from the Compensation
Commissioner.
See: Volume 2
of Bundle C
-
paragraph
6 on pages 158 to 181
4.4. This
approach is correct because the bid document states unequivocally
that bidders who fail to attach one of the compulsory
requirements
would lead to the disqualification of their bid.
See: Volume 1
of Bundle C
-
paragraph
7.6 and caveat at the end of the paragraph on page 25
4.5.
The 5
st
,
6
th
,
7
th
,
9
th
,
10
th
,
13
th
,
15
th
,
16
th
,
17
th
,
1$
h
,
and 20
th
respondents were, at the time of submission of their bids, either not
registered with the Compensation Commissioner, or not in
good
standing.
4.6. After the
granting of the order in respect of Part I of the application, the
applicants' attorneys made enquiries with the
Department of Labour
and learned that a number of entities which have been awarded the
tender, were not registered with the Compensation
Commissioner.
See: Volume 2
of Bundle B - annexure “SA23” on page 117
4.7.
In the bid document it is stated unequivocally and unambiguously that
failure to attach a letter of good standing from the
Compensation
Commissioner would lead to a disqualification of the bid
.
4.8. The fact
that the entities listed in the letter from the Department of Labour
are not even registered with the Compensation
Commissioner is a clear
indication that they could not have submitted letters of good
standing, and that they should have been
disqualified on that basis.
4.9. After the
applicants learned of the identities of the other successful bidders,
the applicants’ attorneys were instructed
to direct a similar
enquiry to the Compensation Commissioner, with a request to verify
registration of the complete list of successful
bidders.
4.10. The
Compensation Commissioner all of a sudden made an about turn and
indicated that the information will not be made available
without an
order of court, compelling it to do so.
4.11. The
applicants found this approach curious because less than a month ago
the Compensation Commissioner made the information
available, in
writing, without any objections.
4.12.
The Compensation Commissioner
was
however prepared
to give oral confirmation that the respondents listed in paragraph
4.5 supra were either not in good standing,
or not registered with
the Compensation Commissioner.
4.13.
The recommendation by the chairperson of the bid adjudication
committee, which imposes a condition and allows the successful
bidders to submit letters of good standing by the Compensation
Commissioner, within three months of receipt of letters of
appointment,
augments the applicants’ contention that at least
some of the successful bidders were not registered, or in good
standing
,
with the
Compensation Commission, at the time of submission of their bids,
otherwise the condition would have been superfluous.
See: Volume 4
of Bundle C
-
paragraph
14.2 on page 380
5.
5.1.
The applicants accessed the Mpumalanga Provincial Government website
at
http://www.mpumalanaa.gov.za/education/default
.
asp?nav~awarded bids
on
12 March 2014.
See: Volume 2
of Bundle B - annexure “SA24” on pages 118 to 119
5.2. As is
apparent from the screenshot, a link appears to the list of bidders
who submitted bids for the tender under review.
5.3.
The link further directs to a link
(
http://mpumalanaa.QQv.za/education/PF/Bids/EDU
069 MP.pdf)
containing
a portable document format (pdf) used to present documents in a
manner independent of application software, hardware,
and operating
systems.
5.4.The pdf file
encapsulates a complete description of a fixed-layout flat document,
including the text, fonts, graphics, and other
information needed to
display it.
5.5. This
specific pdf file contains a complete list of all bids received in
respect of the tender under review.
See: Volume 2
of Bundle B
-
annexure
“SA25” on pages 120 to 153
5.6. This list
reflects that a total number of 1’ 117 entities submitted bids
by the closing date.
5.7. If one has
regard to the submission from the bid compliance committee to the
chairperson of the bid evaluation committee, and
the submission from
the chairperson of the bid adjudication committee to the 4
th
respondent V131 submissions were considered.
See: Volume 2
of Bundle C
-
paragraph
5 on pages 113 to 158 See: Volume 3 of Bundle C - paragraph 5 on
pages 250 to 292
5.8. The bid
compliance and evaluation committees therefore considered the bids of
14 entities which did not submit bids by the
closing date.
6
.
6.1.
In the minutes of the bid evaluation committee held on 20
-
23 November 2014
the committee resolved that bidders who have tendered more than once
for the various municipalities will be disqualified
as this is in
contravention of the supply chain management prescripts, and not in
tine with the advert requirements.
See: Volume 3
of Bundle C - paragraph 6.1 (resolutions) on page 246 (1
st
asterisk)
6.2. The
committee further resolved that bidders who have tendered more than
once and entered into joint venture agreements with
several companies
will be disqualified as this is considered collusion, which is in
contravention to (sic) the SCM prescripts.
See: Volume 3
of Bundle C - paragraph 6.1 (resolutions) on page 246 (2
nd
asterisk)
6.3. It can be
seen from the list of disqualifications from the chairperson of the
bid adjudication committee to the 4
th
respondent that the
resolution was duly implemented.
See: Volumes 3
& 4 of Bundle C
-
paragraph 6 on pages 292
-
323
6.4. According to
the letter of appointment in respect of the 15
th
respondent, an entity by the name of Mbetse Ladies (Pty) Ltd, with
contact person, Ms. E.R. Shongwe was appointed as a service
provider.
See: Volume 1
of Bundle C
-
pages
61 to 62
6.5. A search on
the website of the Companies and Intellectual Property Commission of
all entities, companies and close corporations,
which contain the
word Mbetse in its name produced only one entity with the word Mbetse
in its name, namely Mbetse Ladies (Pty)
Ltd (Registration Number:
2013/134981/07).
See: Volume 2
of Bundle B
-
annexure
“SA26" on pages 154 to 155
6.6. From the
content of the report it is apparent that the only director of Mbetse
Ladies (Pty) Ltd is a certain Ethel Ruth Shongwe.
6.7.
If one has regard to the letter of appointment in respect of the 15
th
respondent, the PERSAL’ check performed by the Department, and
to the fact that Mbetse Ladies (Pty) Ltd is the only entity
registered with the Companies and Intellectual Property Commission
containing the word “Mbetse”, it becomes clear that
the
entity which has been awarded the tender, is the entity reflected in
annexure
“
SA26”
See: Volume 1
of Bundle C
-
pages
61 to 62
See: Volume 2
of Bundle B - annexure “SA26” on pages 154 to 155 See:
Volume 4 of Bundle C - PERSAL check (item 10) on
page 386
6.8.
If one now has regard to annexure
“
SA25”,
and more specifically
item 1’080 thereof, it is apparent that another entity, called
Mabeke Women (Pty) Ltd, also submitted
a bid.
See: Volume 2
of Bundle B
-
item
1’080 on page 151
6.9. A search on
the website of the Companies and Intellectual Property Commission of
all entities, companies and close corporations,
which contains the
word Mabeke in its name, produces only one result, namely Mabeke
Women (Pty) Ltd (Registration Number: 2013/130906/07).
See: Volume 2
of Bundle B - annexure “SA27” on pages 156 to 157
6.10. From the
content of the report it is apparent that the only director of Mabeke
Women (Pty) Ltd is the very same Ethel Ruth
Shongwe, who is the only
director of the 15
th
respondent.
6.11. It is
therefore clear that Ms. Shongwe submitted two bids and should have
been disqualified in terms of the resolution adopted
by the bid
evaluation committee.
6.12.
What is nefarious in the extreme is that notwithstanding the fact
that Mabeke Women (Pty) Ltd appeared on the list of bidders
reflected
in annexure
“
SA25”,
the
entity miraculously disappears from the submissions from the bid
compliance committee to the bid evaluation committee, and the
bid
adjudication committee to the 4
th
respondent.
See: Volume 2
of Bundle C: page 130 See: Volume 3 of Bundle C: page 266
6.13.
The court is referred to annexure
“
FA18”,
attached to the founding
affidavit, and more specifically paragraph 5 (item 420) and paragraph
13.7 thereof.
See: Volume 3
of Bundle A: page 266 See: Volume 4 of Bundle A: page 378
6.14.
This document
was
provided to the
applicants by a whistle blower in the Department, and purports to be
a submission from the chairperson of the bid
adjudication committee
to the 4
th
respondent.
6.15. In this
paragraph the chairperson of the bid adjudication committee
recommends to the 4
th
respondent that Mabeke Women (Pty)
Ltd be awarded the bid.
6.16. The
applicant’s respectful submission is that this document
represents an accurate reflection of the submission from
the
chairperson of the bid adjudication committee to the 4
th
respondent, and that the submission contained in the record has been
tampered with to conceal tender rigging.
6.17. It is
perhaps not innocuous that Ms. Shongwe is the former deputy
chairperson of the Mpumalanga Provincial Tender Board, and
that she
formed the 15
th
respondent, and Mabeke Women (Pty) Ltd,
approximately one month before the closing date of bid submissions.
See: Volume 2
of Bundle B - annexure “SA26” on page 154 under company
summary (registration date)
6.18. According
to the letter of appointment in respect of the 13
th
respondent, an entity by the name of Mathatha General Trading, with
contact person, Mr. C.M. Mashile was appointed as a service
provider.
See: Volume 1
of Bundle C
-
pages
57
-
58
6.19. A search on
the website of the Companies and Intellectual Property Commission of
all entities, companies and close corporations,
which contain the
word Mathatha in its name, produced eighteen results of entities with
the word Mathatha in its name.
See: Volume 2
of Bundle B
-
annexure
t(
SA28” on page 158
6.20.
As is apparent from the list none of the names match the exact
description of the 13
th
respondent
,
as it appears from
the letter of appointment.
6.21. By cross
referencing the name with the description in the submission from the
chairperson of the bid adjudication committee
to the 4
th
respondent, it emerges that the 13
th
respondent is also
referred to as Mathatha General Dealer
See: Volume 4
of Bundle C
-
paragraph
13 on page 378
6.22. The same
reference is also found in the submission of the bid compliance
committee to the chairperson of the bid evaluation
committee.
See: Volume 2
of Bundle C - Item 518 on page 133
6.23.
As is apparent from annexure
“
SA28”,
there is an entity by
the name of Mathatha General Dealer CC, registered with the Companies
and Intellectual Property Commission.
See: Volume 2
of Bundle B
-
annexure
“SA28” on page 158
6.24.
A company report by the Companies and Intellectual Property
Commission containing the details of Mathatha GeneraI Dealer CC
reveals that this entity has been deregistered and ostensibly has no
connection with Mr. C.M. Mashile, who
was
the contact person
referred to in the letter of appointment in respect of the 13
th
respondent
See: Volume 2
of Bundle B - annexure “SA29” on pages 159 -161 See:
Volume 1 of Bundle C
-
pages 57
-
58
6.25.
Company reports in respect of alt the entities listed in annexure
“
SA28”
reveals
that the only entity which ostensibly has any connection with Mr.
C.M. Mashile, is an entity called Mathatha and Given Trading
CC.
See;
Volume 2 of Bundle B
-
annexure “SA30” on pages 162
-164
6.26.
Apart from the connection with Mr. Mashile, the postal address
reflected on the company report matches the address of the
13
th
respondent
,
contained in its
letter of appointment, and Mr. Mash He’s identity number
matches the PERSAL check performed on the entity
‘Mathatha
General Trading’.
See: Volume 1
of Bundle C - pages 57 - 58 See: Volume 4 of Bundle C - PERSAL check
(item 16) on page 386
6.27.
From the content of the reports, the appointment letter
;
and the PERSAL
check, it is apparent that the correct name of the 13
th
respondent is in fact not Mathatha General Dealer or Mathatha General
Trading. The entity which has been awarded the bid is the
entity
reflected in annexure
“
SA30”
6.28.
If one now has regard to annexure
“
SA25”,
and more specifically
items 37, 103 and 210 thereof, it is apparent that the 13
th
respondent submitted three bids.
See: Volume 2
of Bundle B - page 121, 123 & 126
6.29.
The suffix JV at the end of the names in all three instances further
presupposes that the 13
th
respondent submitted bids as part of joint ventures
,
and not as an
individual entity.
6.30. The 13
th
respondent should have been disqualified in terms of the resolution
adopted by the bid evaluation committee on the basis that it
submitted more than one bid.
6.31. Further to
the above, bids were ostensibly submitted by a joint venture, but the
bid was eventually awarded to an individual
entity.
7.
7.1. I have dealt
with the correct description of the 13
th
respondent in the
preceding paragraph.
7.2.
I respectfully refer the court to annexure
“
SA30”
and more specifically
the status of the 13
th
respondent as reflected in the report.
See: Volume 2
of Bundle B - annexure “SA30” on pages 162
-164
7.3. It is
apparent that the 13
th
respondent has been finally
deregistered.
See: Volume 2
of Bundle B
-
annexure
“SA30” on page 162 -164 under company information
(status)
7.4. In terms of
the bid document it is compulsory for a bidder to submit company
registration (Cl PRO/C I PC) documents, as part
of their bid.
See: Volume 1
of Bundle
C -
paragraph
7.3 and the caveat at the end of the paragraph on page 25
7.5.
If the bid of the 13
th
respondent
was
properly
considered it would have been noted that the 13
th
respondent has been deregistered, and it is inconceivable how the bid
could have been awarded to an entity that has been finally
deregistered.
8
.
8.1. in terms of
the bid document the evaluation of the bid was to be conducted on the
basis of functionality (100), price (90)
and equity ownership (10).
See: Volume 1
of Bundle C
-
paragraph
9.1 on page 27
8.2. The bid
evaluation committee members were to evaluate the bids received
according to pre-determined criteria and a bidder that
scored less
than 70 for functionality was automatically disqualifiedand the bid
was not considered for price and equity ownership.
See: Volume 1
of Bundle C- paragraph 9.2.1.4 on page 29
8.3. The 15
th
respondent obtained a score of 71 for functionality.
See: Volume 4
of Bundle C
-
Item
16 on page 324
8.4.
If one has regard to annexure
“
SA26”,
the 15
th
respondent
was
only registered on
6 August 2013.
See: Volume 2
of Bundle B
-
annexure
“SA26” on page 154 under company summary (registration
date)
8.5.
The date of registration of the 15
th
respondent
was
just in excess of
one month before the closing date for submission of bids, being 11
September 2013.
8.6. The effect
of the time between registration and closing of the bids means that:
8.6.1. the 15
th
respondent had no experience in nutrition and food programmes
management, or at most one month’s experience;
8.6.2. could not
submit three years audited financial statements.
8.7. The bid
evaluation committee should therefore have attached a value of 0 to
these items.
8.8. The items
which comprise functionality cannot be adjudicated in isolation, but
should be considered conjunctively.
8.9. The bid
evaluation committee should have considered that a letter of good
standing from the bank, of an entity that has been
in existence for
approximately one month, lacks integrity because it would not have
reflected account conduct, and would have served
no purpose but to
signify that the 15
th
respondent had a bank account.
8.10.The very
purpose of these documents is to demonstrate that the bidder has the
financial resources to ensure that food of the
highest quality is
delivered.
See: Volume 1
of Bundle C - paragraph 8.4 on page 26
8.11. This should
be considered in conjunction with the fact that the 15
th
respondent could not have submitted three years’ audited
financial statements.
8.12. If the 15
th
respondent indeed submitted a letter of good standing from the bank
with its bid, the bid evaluation committee could not have attached
a
value of more than 1 to it.
8.13. The bid
evaluation committee should have questioned the integrity of proof of
availability of buildings and vehicles, because
it is highly unlikely
that an entity which has been in existence for only one month, could
obtain the necessary operational capital
to put sufficient
infrastructure in place to comply with the capacity requirements (an
incidence of functionality) of the bid.
8.14. The bid
evaluation committee should have attached a value of 1 to both the
items relating to transport capacity and type,
and equipment, size
and cold storage.
8.15.
It is therefore respectfully submitted that the 15
th
respondent, on a proper interpretation of the bid, could not have
scored more than
7
for the
subcategory “capacity to deliver on relevant project”.
8.16.
If one then accepts that the 15
th
respondent scored full points for the sub
~
category
“appropriateness of business plan”, the 15
th
respondent would have scored and aggregate of 62 points for
functionality, and should not have been awarded the bid.
8.17. Juxtaposed
to this are the bid submissions by the applicants,
8.18. The bid
submission of one of the applicants, namely Siyakhanya Business
Enterprise, the 3
rd
applicant is attached to the
supplementary affidavit.
See: Volumes
2, 3 & 4 of Bundle B - annexure “SA31” on pages
165-338
8.19. The 3
rd
applicant scored 66 for functionality and was excluded from further
consideration
See: Volume 4
of Bundle C
-
paragraph
40 on page 325
8.20. From the
bid submission it is apparent that the 3
rd
applicant’s
bid complied in all material respects, both in form and in substance,
with both the requirements of Mpumalanga
Provincial SCM - Bid
Bulletin: Volume No. 204, Issued 08 August 2013, and Bid Document: E
DU/069/13/M P.
8.21. On a proper
consideration of the 3
rd
applicant’s bid it should
have scored the minimum threshold of 70 for functionality.
9.
9.1. The
following respondents scored a negative in the final summary of
points allocated in respect of the bid criteria for price.
See: Volume 4
of Bundle C - paragraph 10 on pages 375 - 376
9.1.1. The 10
th
respondent scored (227.58);
9.1.2. the 11
th
respondent scored (227.58);
9.1.3. the 12
th
respondent scored (169.35);
9.1.4. the 16
th
respondent scored (169.35);
9.2. The reason
why these respondents scored negatives in the summary of points in
respect of price is because their tendered amounts
are more than 400%
higher than the average tender amount, submitted by the other
respondents.
9.3.In
the final summary of points in respect of price and equity ownership
,
the aggregate of
the scores of the two items, the 12
th
respondent’s score in respect of price is all of a sudden
reflected as 49.74, as opposed to (169.35), and the 7
th
respondent’s score in respect of price is all of a sudden
reflected as (169.35), as opposed to 49.74.
See: Volume 1
of Bundle C- paragraph 12 (items 13 & 14) on page 377
9.4. The
respondents that scored negatives in the summary of points should
have been disqualified on the basis of the inflated prices,
notwithstanding the fact that they might have qualified in terms of
the functionality criteria, because their bids were mathematically
and materially unbalanced.
9.5. Due to the
nature of the scope of the service, bids were requested in unit price
format, with the low bid determined by the
price of a food parcel per
learner per day, delivered to the relevant school; made up of the
cost of dry food, fresh food, and
transport.
9.6. The
respondents’ unbalanced bid is objectionable because it:
9.6.1. may not
ultimately prove to be the best offer;
9.6.2. is
detrimental to the concepts of competitive bidding.
9.1. The
unbalancing of the respondents' bids is significantly problematic so
as to have warranted the rejection of the bid.
9.8. A
mathematically unbalanced bid, with overstated prices, is one in
which each bid item fails to carry its proportionate share
of the
overhead and profit in addition to the necessary costs for the item.
9.9. A bid that
is materially unbalanced has shifted not only a disproportionate
amount of overhead and profit, but also some portion
of the actual
cost of elements of work.
9.10. An
unbalanced bid, whether it is mathematically or materially
unbalanced, carries increased potential for disputes and claims
with
the increased costs of resolution for both government and the bidder.
9.11. The way in
which the unbalanced bids of the respondents were handled is
particularly disconcerting.
9.12.
We respectfully refer the court to the recommendation by the
chairperson of the bid adjudication committee, which imposes
a
condition on the tendered rates of the successful bidders be barred
on the standard gazetted rate for the National School Nutrition
Programme, which is R2.18 for primary schools per day per meal and
R3.08 for secondary schools per day per meal beyond a 30 kilometre
radius
,
and R2.10 for
primary schools per day per meal and R3.00 for secondary schools per
day per meal within a 30 kilometre radius.
See;
Volume 4 of Bundle C - paragraph 14.1 on page 380
9.13. If one
considers the bid prices of the respondents they either inflated
their prices, or the bid prices are what it will cost
the respondents
to implement the bid.
9.14. If one
accepts the latter scenario the respondents will not be able to
deliver at the expected standard due to affordability
issues, and
there is a real likelihood that substandard food will be delivered to
schools.
9.15.
The imposition of the unilateral condition
was
procedurally
unfair and the respondents should not have been awarded the bids
because the bids were not responsive.
9.16. The
unilateral condition imposed by the chairperson of the bid
adjudication committee to augment a non-responsive bid is
procedurally and substantively unfair.
9.
11.
if the respondents’ bids could be cured by unilateral
conditions which did not form part of the bid criteria, other
non-responsive
bids should also have been cured by the imposition of
unilateral conditions.
10
10.1. In terms of
the bid document, the bid evaluation committee members were to
individually evaluate the responses received against
the bid
criteria.
See: Volume 1
of Bundle
C -
paragraph
9.2.1.1 on page 27
10.2. If one has
regard to the score sheets of the members of the bid evaluation
committee, of the bidders who complied with the
technical
requirements of the bid, it is glaringly obvious that all the scores
of all the members in respect of each and every
entity are exactly
the same.
See: Volumes 4
& 5 of Bundle C
-
pages 387
-
458
10.3. If the bids
were evaluated individually by the bid adjudication members, as
prescribed by the bid document, it is not only
improbable, but
impossible, that the scores of the individual members in respect of
each and every bidder under review could have
been exactly the same.
10.4. The only
inference that can be drawn from this is that the bids were not
adjudicated by the members individually but adjudicated
according to
the dictates of another.
10.5. This do not
only fly in the face of the prescripts of the bid document, but also
defeat the very raison d'être of a
committee as opposed to an
individual adjudicating bids.
11
.
11.1. There are
numerous discrepancies between the supporting documents attached to
the founding affidavit, and the documents which
comprise the record,
notwithstanding the fact that the documents were generated by the
same institutions, dealt with the same subject
matter, were generated
for the same purpose, and were addressed to the same entities for
consideration.
Compare
Volumes 2 & 3 of Bundle A: paragraph 6 on pages 164 to 204
(list of all bids received
-
1’116) with Volume 2 of Bundle C: paragraph 5
on pages 113 to 158 (list of all bids received
-
1’131)
Compare Volume
3 of Bundle A: paragraph 7 on pages 204 to 223 (list of bids
disqualified - 466) with Volume 2 of Bundle C: paragraph
5 on pages
158 to 181 (list of bids disqualified
-
456)
Compare the
inclusion ofMabeke Women (Pty) Ltd in Volume 2 of Bundle B - item
1
f
080 on page 151, and in Volume 2 of Bundle A on page 178
(item 407), and in Volume 3 of Bundle A on page 231 (item 231), and
in
Volume 3 of Bundle A on page 266 (item 420), and Volume 4 of
Bundle A on page 324 (item 7), and in Volume 4 of Bundle A on page
375 (item 7), and the absence ofMabeke Women (Pty) Ltd from Bundle C
(the record)
11.2.
If one compares the list of bidders who scored more than 70 for
functionality as it appears in annexure
“
FA18”
to the same list as it
appears in the record, one cannot help but to notice that Ms.
Shongwe’s one company has simply been
replaced with the other.
See: Volume 4
of Bundle A - paragraph 9 on page 375 (item 7)
See: Volume 4
of Bundle C - paragraph 10 on page 375 (item 16)
11.3.
It will be argued on the applicants’ behalf that these
discrepancies are indicative of the fact that there has been
tampering with the outcome of the tender process, especially in light
of the fact that the documents contained in Bundle A accords
with the
information contained in annexure
“
SA25”
12
.
12.1. Lastly it
will be argued that mere reference to the submission of the bid
adjudication committee was not sufficient to satisfy
the requirement
that the Head of Department had to apply his or her mind to the
adjudication of the tender.
12.2. The bid
evaluation and adjudication committees took the decision to exclude
certain bidders and approve of others.
12.3. The
decisions by the committees could not merely be endorsed by the Head
of Department; the bases of these decisions had to
be considered by
the Head of Department in order to exercise a valid discretion.
12.4. The Head of
Department needed to establish which issues were taken into account
in the process of adjudicating the bid and
why, the weight given to
the specific issues, and the reasons for the decisions made.
12.5. The minutes
of the bid evaluation committee read with the bid adjudication
committee’s report to the Head of Department,
and especially
the part on functionality did not contain any of the above.
See: Volume 3
of Bundle C - pages 245 to 247 See: Volume 4 of Bundle C - paragraph
7 on pages 323 to 374
12.6. It is
rather curious that the bid adjudication committee met for 3 days but
provides a minute of only 3 pages.
12.7. It will be
argued that the fact that the Head of Department merely endorsed the
decisions of the committees, without applying
his or her mind to the
thought processes of the committees which took the decisions, and in
doing so deferred the adjudication
of the tender to the committees,
which, in the absence of a delegation, is unlawful."
[8] I am satisfied
that these alleged irregularities appear clearly from the record
filed by the respondents read with the affidavits
filed by the
applicants.
[9] The applicants
rely on section 6 of the Promotion of Administrative Justice Act, Act
3 of 2000 (PAJA). Mr Vorster submitted
in his heads, that the
irregularities justifies a judicial review in terms of PAJA, due to
the following:
“
15.3 It will be
argued that the irregularities listed in (he affidavits have been
established and are material because:
15.1.1. the
administrator who took it was biased or reasonably suspected of bias;
15.1.2.
the action
wav
procedurally
unfair;
15.1.3. the
action was taken for an ulterior purpose or motive;
15.1.4. relevant
considerations were not considered;
15.1.5. of the
unauthorised or unwarranted dictates of another person or body;
15.1.6. in bad
faith, arbitrarily and capriciously;
15.1.7. the
action itself is not rationally connected to the purpose for which it
was taken, the information before the administrator;
15.1.8. 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;
15.1.9. the
action is otherwise unconstitutional or unlawful.
15.2. It will
finally be argued that on a conspectus of all the evidence that the
deviations from fair process are symptoms of corruption
or
malfeasance in the process and the unfair process betoken a
deliberately skewed process.
[10] I agree.
COSTS
[11]
The applicants pray for a punitive cost order against the second,
third and fourth respondents. Having regard to the extent
and nature
of the irregularities referred to
supra,
I
am of the view that the conduct of the officials involved in the
adjudication of the bid process is abhorrent, shocking and a
far cry
from the constitutional values enshrined in the Constitution.
[12] The only manner
of expressing my displeasure with the conduct of these officials is
to award a cost order on an attorney and
client scale.
ORDER
I grant the
following order:
1. The tenth to
twenty second respondents are joined as respondents in this matter.
2. The applicants'
non-compliance with order 4 of the Honourable Mr. Justice Preller,
dated 4 February 2014 is condoned.
3. The awarding of
Bid Number: EDU/069/13/MP [Appointment of the service provider/s to
manage, operate warehouses and supply bulk
foodstuffs, fresh
vegetables and fruits to schools participating in the National
Nutrition Programme with identified CRDP areas
for a period of (3)
three years, with the option to extend for another two (two) years]
(the bid), to the 5
th
- 21
st
respondents, is
reviewed and set aside.
4. The bid is
remitted to the fourth respondent for reconsideration, who is ordered
and directed to consider and adjudicate upon
the bid, having due
regard to this judgment, within 1 (one) month of the granting of this
order.
5.
The status
quo
in
respect of the implementation of the bid is maintained until the
fourth respondent has reconsidered and re-adjudicated upon the
bid.
3. The second, third
and fourth respondents is ordered to pay the costs of the
application, on a scale as between attorney and client,
jointly and
severally, the one paying, the other to be absolved.
JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE
GAUTENG HIGH COURT, PRETORIA
Applicants'
attorneys:
Hugo & Ngwenya
Incorporated
Applicants
counsel:
Adv Adrian
Vorster (Heads of argument)
Adv D Van den
Bogert (appeared)
First to Fourth
Respondent's attorneys:
The State
Attorney