More delays for Mogo 25km roads as tender war persists
Innocent Selatlhwa | Monday June 23, 2025 07:00
Following a dispute launched by ZTK Joint Venture (JV) consisting of Zak Construction (Pty) Ltd and Tong- Ke (Pty) Ltd appealing their disqualification from the tender for having cancelled on the tender document, the Public Procurement Tribunal ordered that both technical and financial evaluation of the tender be re-evaluated by another procuring entity.
Just when ZTK thought they would have another chance at the tender, Mogoditshane Thamaga District Council (MTDC) and the initial bid winners Evolution Engineers/ Mason Group JV, appealed to the High Court. The tender was awarded for around P300 million.
ZTK had taken issue with being excluded before the financial stage of evaluation for having cancelled the tender document. They approached the tribunal challenging the decision, only for the tribunal to look deeper into the tender, uncovering what seemed like multiple irregularities, that the Mogoditshane Thamaga Council Secretary, Nokuthula Mhlanga, and her Deputy, Kenosi Montsheki, could not respond to questions cordially, often giving contradicting explanations.
The dispute
The dispute is in relation to tender M-TDC/TR/CMS/034/2024- 2025 on the design and construction of 25-kilometre Mogoditshane Internal roads with associated storm water drainage system and solar street lighting was approved under the Economic Recovery Transformation Programme (ERTP) during the 2021/2022 financial year. Evolution Engineers/ Mason Group JV, who were the second respondents in the case, had been identified as the best bidders and had yet to be awarded the tender.
Presenting the case of ZTK JV, Nicholas Zakhem said they were wrongfully disqualified from the tender for cancelling over a material that was listed on the tender document, and wrote the alternative material they would use as the listed one was not available in the market. He argued that they were wrongfully removed from participating in the financial stage of the bidding, while what they did does not constitute to material variation.
“They stopped our evaluation at the financials. We want to stop the disqualification and finish the evaluation of our tender. Then that is when they can determine who is the best tenderer,” he said.
In response, Council Secretary Mhlanga said instead of indicating next to the material they would need to substitute, ZTK JV cancelled on the tender document. “It was specified on the tender document that you should not alter the tender document. And what they did was a violation of the instruction,” she said.
Zakhem also argued that their documents should not have been checked for responsiveness during the opening of the bids for financial evaluation. In responding to this, Mhlanga said they had also realised then that ZTK JV had not filled the tender document, which immediately made the tender non-responsive and called for disqualification. The tribunal would not have any of it, as the last of the communications sent to ZTK JV only mentioned the cancellation issue as the sole reason for disqualification.
Things would get interesting as Montsheki said during the financial evaluation that ZTK JV was never evaluated for the financial stage, only for the tribunal to lead them to evaluation documents they had that showed that indeed the company was given a score for their financial bid. Member of the tribunal, Manfred Kgari, led a very tense session with officers seemingly unprepared for the line of questioning, which looked deeper into the tendering process. Moreover, the case brought by the Member of the Tribunal, Manfred, took the lead in questioning the chairperson of the Procurement Oversight Unit.
Quizzed on where the marks came from if the tender was not evaluated for financials, Montsheki froze for a while. He would then say ”to the best of my knowledge, they were never assessed for financials.”.. before he could complete, Judge President Kenneth Lebotse called on him to relax and answer questions based on official documents before him.
Montsheki would eventually admit that the company’s financial bid was evaluated.
It also came to the fore that the three companies that were eventually the last three were selected in a manner that raised eyebrows, as they were selected by the Oversight unit, which would eventually select the preferred bidder without going through a proper evaluation process. It was stated that the evaluation team forwarded the bids to the Oversight without having assed on three items that they could not asses. These were litigation history, workload, and performance.
Quizzed on how they moved from three bidders to the preferred one, Montsheki had difficulty responding. He said they as the Oversight assessed and recommended, something which brought more questions. Kgari quizzed on which of the three items they assed on to choose the preferred bidder, he said they used only workload.
He was also quizzed if the law allows them to evaluate as an oversight body. He said they adjudicate and that the law does not allow them to evaluate.
It would also come to the fore that while there were 10 bidders recommended for financial evaluation, it was unexplained why it was only mentioned that three of the eight bidders were recommended for award. To this, Montsheki said while doing pre-adjudication, adjudication, and recommending to award, which is part of the evaluation to test whether they are confined to the criteria.
Called on to make their presentation, representatives of Evolution Engineers/ Mason Group JV, led by Tuelo Tuelo, lamented that the court had veered off addressing the matter that was not brought before the Tribunal by ZTK. They argued that ZTK was rightfully disqualified as they had altered the document by cancelling it.
Tribunal ruling
The tribunal found that ZTK acted in accordance with the instruction by indicating that the Bitumen 60/70 Pen and 80/ 100 Pen were no longer available in the market. “Notably, MTDC did not dispute the unavailability of the said bitumen. Instead, it was the Evolution Engineers/ Mason Group JV that challenged this assertion without providing any supporting evidence to refute ZTK JV’s claim or MTDC’s answer. Conversely, ZTK JV substantiated its position both in its bid submission and in its appeal, furnishing evidence of the product’s non-availability in the market,” he said The tribunal would, however, not grant ZTK JV their wish to have the tender awarded to them or damages equivalent to their claim.
Meanwhile, the tribunal also noted irregularities among them that, based on the Procurement Oversight Unit (POU) report of the 17 October to 15 November 2024, as part of its intervention in pre-adjudication, it scored the bids as well.
The POU also substituted the scores of the Evaluation Committee with its scores. “This is evident from their recommendation to the Accounting Officer. While the Evaluation Committee report shows that 10 bidders met the technical stage requirements and were determined to be qualified and therefore recommended for financial opening, only eight were approved by the POU and recommended to the Accounting Officer. It is evident that the re-evaluation carried out by the POU resulted in two bidders failing to meet the technical qualification. Other bidders ended up with more marks and some with fewer marks,” they stated.
According to the tribunal, the POU carried out arithmetic checks and verbally contacted the Evolution Engineers/ Mason Group JV to agree to arithmetic corrections. “All these actions stated above are in violation of the Public Procurement Act 2021, Section 46. The POU mandate is prescribed as pre-adjudication,” they wrote.
In the end, the Tribunal upheld the appeal and declared that the decision of MTDC to dismiss ZTK JV was set aside. The evaluation and pre-adjudication reports of MTDC for the technical and financial stages were also set aside. The decision to award the tender to Evolution Engineers/ Mason Group JV was also set aside.
MTDC was ordered to undertake re-evaluation of the technical stage, for all bids, including all three criteria it failed to evaluate within 14 days following the conclusion of the technical re-evaluation “The Accounting Officer of MTDC is hereby ordered to delegate pre-adjudication of both the technical and financial evaluation of the tender to another procuring entity in line with Regulation 5(2) (e) of the Act.
The Appeal
MTDC and Evolution Engineers/ Mason Group JV are now appealing the entire judgment of the tribunal. They argue that the tribunal erred in and misdirected itself in law, particularly by indicating that the specified Bitumen 60/70 and 80/ 100 were no longer available in the market, and that ZTK JV had acted in accordance with the Procuring Entity’s instruction.