Automated Summary
Key Facts
The applicant, PT Ratalane Construction (Pty) Ltd, was declared the successful bidder for two lots of a school construction tender under Bid REF: NO. GoL/JICA/W001/2021/2022/L1 & L2. On 18 November 2022, the 2nd respondent (Ministry of Education and Training) canceled the tender without providing reasons, citing a Japanese consultant's unsubstantiated claim that the applicant's bid price was too low. The court found the cancellation both unfair and unreasonable, as the consultant's objections were not supported by procurement guidelines and the evaluation team had already confirmed the applicant's qualifications. The decision was set aside, and the respondents were ordered to proceed with contract negotiations.
Issues
- The court determined whether the 2nd respondent's decision to cancel the tender for the construction of secondary schools without affording the applicant a hearing and without providing reasons was unfair and unreasonable, finding it to be both.
- The court assessed whether the consultant's objection to the applicant's bid price, based on alleged market discrepancies, could override the evaluation team's decision under the JICA Procurement Guidelines, concluding that the guidelines do not grant the consultant such authority.
Holdings
- The court directed the 1st and 3rd respondents to proceed with the tendering process and invite the applicant as the successful bidder to enter into a contract in accordance with the Procurement Guidelines.
- The court held that the 2nd respondent's decision to cancel the tender without providing reasons was both unfair and unreasonable, and the decision was reviewed, corrected, and set aside.
Remedies
- The court set aside the 2nd respondent's decision to cancel the tender for the construction of Secondary Schools – BID REF. NO. GoL/JICA/W001/2021/2022/L1 & GoL/JICA/W001/2021/2022/L2 with immediate effect.
- The applicant was awarded the costs of the application.
- The court directed the 1st and 3rd respondents to proceed with the tendering process and invite the applicant as the successful bidder to enter into a contract in accordance with section 5.08 of the Procurement Guidelines.
Legal Principles
- The court applied the principle of natural justice, holding that the tender cancellation was unfair as the applicant was denied a hearing prior to the decision. The absence of reasoned justification for the cancellation further violated administrative fairness requirements.
- The decision to cancel the tender was found to be Wednesbury unreasonable and irrational, as the respondent failed to demonstrate that the cancellation was within the bounds of reasonable administrative action. The court emphasized the need for administrative decisions to be reasoned and not arbitrary.
Precedent Name
- Jeffery v President, South African Medical and Dental Council
- UWC v MEC for Health and Social Services
- National Energy Regulator of South Africa v PG Group
Cited Statute
- JICA's Procurement Guidelines for the Japanese Grants (Tentative Type II) February 2016
- Agreement between the Government of Lesotho and the Japanese government
Judge Name
Justice Mokhesi
Passage Text
- Administrative Law: Tender process cancelled without giving the successful tenderer reasons for cancellation- Held, the decision is both unfair and unreasonable- the decision reviewed and set aside.
- The consultant's objection cannot trump the decision of the evaluation team. One cannot escape the conclusion that the decision to cancel the tender is unfair and unreasonable.
- The 1st and 3rd Respondents are directed and compelled, to proceed with the tendering process and to invite the applicant as the successful bidder to enter into a contract in accordance with section 5.08 of the Procurement Guidelines.