The Free State High Court Judge Paul Leroux Pohl delivered a bloody nose to Roadmac Surfacing PTY LTD after Police, Roads, and Transport disqualified them in the road maintenance tender.
In June we reported how Judge Daffue found MEC Bulwane relied on section 14 and its sub-sections which do not exist.
Daffue said, “Clearly, the first respondent did not have the faintest idea which regulations he wanted to rely on to substantiate the alleged non-compliance of the prequalification of a 30% subcontracting requirement.
If I accept for the moment that the first respondent intended to refer to regulation 14, section 14 does not deal with prequalifying criteria.”
This followed an application brought by Roadmac Surfacing (Pty) against the MEC for Police, Roads, and Transport; William Bulwane, was the first respondent, and Tau Pele Construction was the second respondent.
Judge Daffue said in delivering judgment then.
“In conclusion a final word on the 2017 regulation. These regulations were declared invalid.
A reviewing court will have an opportunity to consider this aspect again although the tender process was initiated and finalized during the period when the declaration invalidity was suspended.”
BACKGROUND
Upon invitation by the Department of Police, Roads and Transport, Free State Province, several construction companies submitted tenders for “the special maintenance on Route P44/1&2 between Deneysville and Jim Fouche from section one (01) to section four (04).
The duration of the project was advertised to be six months only. Once the tender had been awarded, the applicant, being one of the unsuccessful tenderers, decided to embark on litigation.
On 11 January 2022, the applicant became aware that the tender had been awarded to the second respondent. The applicant immediately reacted and requested reasons to be provided by 14 January 2022. No reasons were provided. On 18 January 2022 its application for urgent relief, set down for 28 January 2022, was issued.
On 28 January 2022, an order was granted by the agreement. The first respondent was directed to on or before 7 February 2022 file “full and written reasons” for the decision not to award the tender to the applicant. The reasons then followed as indicated above, and thereafter the application for the interim relief referred to in paragraph [2], supra.
The reasons thus furnished by the first respondent reads as follows: “It is a known fact that pre-qualification being stage one(1) is compulsory for the contractor must complete 30% subcontracting amount. The criteria found its way in terms of Section 14 subparagraphs 14.1 to 14.6 of the Preferential Procurement Regulations, 2017 about the Preferential Procurement Policy Framework Act of 2000. We further refer Roadmac to SDB 6.1 of its tender whereby it says “Not Applicable” while it MUST give the subcontracting amount as part of the terms and conditions of the tender. We further refer Roadmac to Tender Bulletin advertisement no. 75 dated 3rd December 2021 as to pre-qualification criteria (PPR2017). Based on non-compliance of 30% subcontracting, it was deemed not to be responsive to pre-qualification at stage 1.”
The present review application was then issued on 22 April 2022 which was opposed by the first and second respondents. Opposing affidavits were filed by the respondents and a replying affidavit was filed by the applicant.
It is necessary to refer to the following portions of the tender documentation to give context to the cases put forward by the respective parties.
The tender notice and invitation to tender has the following paragraph on the first page thereof:[ “The successful tenderer must subcontract a minimum of 30% of the value of the contract to Targeted Enterprises through Contract Participation Goals (CPG)”
In the portion of the documentation, just above the applicant’s representative’s signature, where the applicant was required to stipulate its price for the bid, it stated that it offered the amount of R38 803 821.40 VAT included. Just below that amount, printed in bold as part of the tender documentation, the following words appear: “WHICH WILL INCLUDE A MINIMUM SUBCONTRACTING VALUE OF:”[4] That portion was however not completed by the applicant but for the acronym “TBC”. According to counsel, it means “To be concluded” or “To be calculated”. Even though this part of the tender document requesting the subcontracting amount in rand to be written in, the applicant did not do so.4
Clause F.2.14 requires “Information and data to be completed in all respects” and further “Accept that tender offers, which do not provide all data or information requested completely and, in form, required may be regarded by the Employer as non-responsive.”
Clause F.3.8.1, which deals with the test for responsiveness under the heading dealing with the employers’ obligations and reads as follows: “Determine, on opening and before detailed evaluation, whether each tender offer properly received: a) meets the requirements of these Conditions of Tender, b) has been properly and fully completed and signed, and c) is responsive to the other requirements of the tender documents. (emphasis added).
In the portion of the tender documentation that deals with the returnable schedules, a note appears that the tenderer must realize that failure to complete the said documentation to the satisfaction of the Employer, “may lead to rejection because the tender is non-responsive.”
Paragraph 7 of the said documentation then deals specifically with sub-contracting. The first question is: “Will any portion of the contract be sub-contracted? There is then a tick box with the options of “yes” or “no”. No box was ticked and the applicant’s representative dealt with this section by drawing a line through it and writing in pen “not applicable”.
The applicant’s tender in the amount of R38 803 821.40 was the lowest of the 14 tenders. The second respondent’s bid was in the amount of R51 615 000.00.
Dealing with the case at hand Judge Pohl said.
“It is patently clear for the following reasons that the applicant failed to submit a complete and compliant bid:
41.1 As is indicated in paragraph [13], supra, the invitation to tender required the successful tenderer to subcontract a minimum of 30% of the value of the contract. When any bidder sees that invitation and responds thereto, it surely wants to be the successful tenderer. The fact that the invitation refers to a “successful tenderer”, does not mean the 30% subcontracting only comes into play once the eventual successful tenderer is identified.
41.2 As is indicated in paragraph [14], supra, the applicant’s representative failed to stipulate the monetary value of the subcontracting, despite the tender documentation clearly and in bold print, requesting it to do so. Instead, he wrote “TBC”.
41.3 As is indicated in paragraph [22], supra, and at the portion of the tender documentation which specifically deals with subcontracting, the applicant’s representative simply drew a line through it and wrote not applicable.
41.4 As is indicated in paragraph [16], supra, there was throughout the tender process an obligation on the applicant to ensure that its documentation was complete.”
In delivering the judgment Judge Paul Le Roux Pohl ordered:
In the final analysis, I find that the tender documentation was clear, both concerning the duty to fill in the required documents completely and fully, as well as the subcontracting requirements. The applicant did not do so and its bid was therefore correctly rejected.
The following order is thus made:
- The application is dismissed with costs.
In other unrelated news the upcoming Mangaung Regional Conference set for this week is likely to be interdicted following allegations of fraud and wards theft in Mangaung, this is according to sources within Mangaung.
Both Hilary Mophethe, spokesperson for Police, Roads, and Transport, and William Bulwane, MEC for Police, Roads, and Transport did not respond to our texts.
If you have news or tips please email us at news@stepupsanews.co.za or WhatsApp 0685000246
More Stories
A company with links to Patrick Phuti gets R97 million tender
“Cde Thabo is out of line” – Setai to Motsoeneneng
Women shot dead a few kilometres from Men’s Indaba venue