Ekurhuleni Metropolitan Municipality v Takubiza Trading & Projects CC and Others

South Africa

03.06.2022

Commercial

To extend the tender validity period, the consent of all the participants to the tender process is required

In March 2020, the Appellant, the City of Ekurhuleni Metropolitan Municipality (the Municipality), published an invitation to tender under reference PS-F07-2020 (the tender) for the appointment of finance meter management consultants to manage the Municipality’s electricity and water meter readings and credit control processes on an ‘as and when’ required basis for a 36-month period. Appointments were sought to be made in respect of two separate areas, namely the North East (area 1) and South West (area 2).

The City Manager and the Chairperson of the BAC approved the award to each of Aurecon and Ntiyiso on 24 November 2020 and, by letter dated 17 December 2020, they were informed of their appointment. Takubiza Trading & Projects CC (Takubiza), caused an urgent review application to be issued out of the high court. The court set aside the award to both Aurecon and Ntiyiso. Takubiza’s primary contention, which found favour with the High Court, was that the award to each of Aurecon and Ntiyiso had been made after the tender validity period had already lapsed.

There was no explanation from the Municipality as to why the notification was despatched on the very last day of the tender validity period. A real difficulty for the Municipality was that their notification, for good reason, required confirmation from all of the bidders on or before 9 October 2020, which, did not happen. The Court further held that an organ of state cannot be better placed merely because it had despatched a request to which it was yet to receive a response before the expiration of the validity period. In truth, the despatch of the notification was so late as to be 2 more illusory than real. By the time the tender validity period had expired, there was nothing to extend because, the tender process had been concluded, albeit unsuccessfully.

The validity period was indeed one of the fundamental rules of the game, being the period within which the process should be finalised. To extend the tender validity period, the consent of all the participants to the tender process was required. Unless there was a timeous request and favourable response from all the tenderers prior to the expiry of the tender, the tender came to an end. A tender process cannot be open-ended.

The SCA concluded that it would not be right for the residents of the Municipality to be burdened with costs that should not have been incurred in the preparation, perusal and copying of the record. In the result, the SCA held that the Appellant’s Johannesburg and Bloemfontein attorneys should not be entitled to recover any of the costs associated with the preparation, perusal or copying of the record from the appellant. Appeal dismissed.

Tags : Tender Validity period Consent

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