Local gov't dodges tender bullet
Mpho Mokwape | Friday February 15, 2019 12:03
The ministry through the Public Procurement and Asset Disposal Board (PPADB) and the ministry’s chairperson of tender committee has been battling in court with Prinsan Group over the tender that was cancelled in 2017.
Before the tender cancellation in 2017, the ministry had in 2015 invited bidders for the supply, implementation and maintenance of an electronic system, which was to be used for the distribution of food coupons for destitute persons, orphans and community home-based care beneficiaries.
At the time, Prinsan had qualified for Stage 3 of the tender, which was the final point before the ministry communicated its cancellation on June 12, 2017.
Aggrieved by the decision, the company took the ministry to court challenging the cancellation until the case reached the Court of Appeal (CoA) this year.
Subsequently, the CoA recently saved the ministry when it dismissed the company’s appeal on the basis that it did not have a case against the ministry’s decision.
Justice Lord Arthur Hamilton said the company’s affidavit never suggested that the decision to cancel the tender was illegal by reason of non-compliance on set regulations.
He explained that though there were references to a failure on the part of the respondents to produce documents and some reference in the context of the regulations, there was no suggestion that the decision complained of was reviewable.
“There was no sign of the affidavit that the decision complained of was reviewable on the basis of any other form of irrationality or on the ground of illegality. It was not alleged that it was reviewable on the ground of some breach of or non-compliance with any of the regulations,” he said.
On the contention that the tender was cancelled in bad faith, the judge said the High Court had analysed more so that the affidavit was redolent with expressions to that effect and the company alleged that there was an intention by the decision maker to favour another bidder over them, that the tender was not genuinely cancelled.
He mentioned that the court was entitled to conclude that the company’s contentions in so far as based on bad faith had not been made out.
“An assertion of bad faith is a serious allegation and to be made must be clearly proven either directly or by compelling inference from the circumstances,” he said.
Judge Hamilton said the High Court found that there was no sufficient evidence to hold that bad faith had been made out, noting that he was not going to depart from the findings unless he was shown that it was plainly wrong or proceeds on some misdirection.
He explained that the respondents denied any bad faith and had maintained that the cancellation had been for genuine budgetary reasons.
Hamilton pointed out that although on the face of the company’s bid document the cost appeared to be within a range, which the ministry might afford, on further analysis and consideration it became clear that the cost would be well beyond the ministry’s budget, especially that it was required over a four-year period.