Automated Summary
Key Facts
The High Court of South Africa (Western Cape Division, Cape Town) reviewed and set aside the College of Cape Town's decision to award a 36-month security services tender to Mthidhla-Sniper. The court found the tender process unlawful due to non-compliance with the College's Supply Chain Management Policy and the Promotion of Administrative Justice Act (PAJA). Key irregularities included disqualifying bidders based on documents not required by the tender specifications, failure to provide requested reasons for unsuccessful bids, and the College Principal's decision to award the tender despite the Bid Adjudication Committee's concerns about financial stability. The court ordered the tender to be re-advertised following proper procedures.
Issues
- The College sought to self-review its tender award decision under PAJA, but the court held this was impermissible. PAJA does not authorize public institutions to use its provisions for self-review; judicial review remains the appropriate mechanism. The College's attempt to retain contract terms with Mthidhla-Sniper via equitable relief under section 172(1)(b) of the Constitution was also dismissed due to insufficient factual basis.
- The court reviewed whether the College of Cape Town's tender award to Mthidhla-Sniper violated procedural fairness requirements under the Constitution and Preferential Procurement Policy Framework Act (PPPA). Key issues included the disqualification of bidders based on irrelevant criteria (e.g., provident fund compliance), failure to provide reasons for unsuccessful bids, and irregularities in committee composition and processes.
- The Applicants alleged the College evaluated bids using documents not required by the tender specifications, such as UIF certificates and financial statements. The Bid Evaluation Committee (BEC) and Bid Adjudication Committee (BAC) failed to follow their prescribed roles, with the BAC chairperson (a College Council member) in breach of SCM Policy. The College Principal also disregarded financial capability requirements outlined in the tender's Special Conditions of Contract.
Holdings
- The College was ordered to pay the Applicants' costs in both the main application and counter-application at Scale A, as the counter-application was deemed unsuccessful and without merit.
- The College Principal's decision to award the tender to Mthidhla-Sniper was set aside for failing to follow the Bid Adjudication Committee's (BAC) recommendations and ignoring financial capability requirements outlined in the tender.
- The court reviewed and set aside the decisions of the Bid Evaluation Committee (BEC) as they evaluated bids based on documents not required by the tender specifications, leading to procedural unfairness.
- The College's application for relief to maintain existing contract terms with Mthidhla-Sniper was dismissed due to lack of evidentiary support and procedural justification.
Remedies
- The decision of the First Respondent's College Principal to award Tender No. CCT042023 to the Joint Venture between the Second Respondent and the Third Respondent is reviewed and set aside.
- The First Respondent is directed to appoint a bid specification committee, a bid evaluation committee, and a bid adjudication committee in accordance with its supply chain management policy, with a view to re-advertising, adjudicating and awarding Tender No. CCT042023.
- The First Respondent is directed to re-advertise Tender No. CCT042023 in accordance with its supply chain management policy.
- The application for the relief sought by the First Respondent in terms of prayer 4 of its notice of motion in the counter-application is dismissed.
- The First Respondent shall pay the Applicants' costs in respect of the main and counter-applications. Costs are granted on Scale A in terms of rule 67A(3)(a).
- The decisions and recommendations made by the First Respondent's Bid Evaluation Committee on 3 October 2023 in respect of Tender No. CCT042023 are reviewed and set aside.
Legal Principles
The court applied judicial review principles under the Promotion of Administrative Justice Act (PAJA), finding the tender process procedurally unfair due to the failure to consider relevant factors (financial capacity) and the use of irrelevant criteria (undocumented requirements). The decision to award the tender was set aside as it violated PAJA's provisions on transparency and procedural fairness.
Precedent Name
- State Information Technology v Gigima Holdings
- Minister of Finance v Afribusiness NPC
Cited Statute
- Preferential Procurement Regulations, 2017
- Constitution of the Republic of South Africa, 1996
- Preferential Procurement Policy Framework Act, No. 5 of 2000
- Continuing Education and Training Act, No. 16 of 2024
- Promotion of Administrative Justice Act, No. 3 of 2000
Judge Name
Vivier, P AJ
Passage Text
- The College Principal awarded the tender to Mthidhla-Sniper despite the BAC's recommendation to refer the matter back for further evaluation. The Principal incorrectly dismissed concerns about financial feasibility raised by the BAC.
- The court concluded that the College's counter-application for self-review was 'misconceived' as PAJA does not permit organs of state to self-review administrative decisions. The relief sought to preserve the existing contract was dismissed.
- The Bid Adjudication Committee (BAC) decided not to recommend any bidders, citing concerns about the evaluation criteria used by the Bid Evaluation Committee (BEC). The BAC noted that the BEC disqualified bidders based on documents not required by the tender specifications.