Ftown council wins P25 million disputed tender case
Lebogang Mosikare | Wednesday October 11, 2017 15:27
The contractor, Lejala Electrical (Pty) Ltd had taken COFC, the chairperson of COFC tender appeals board and Powacom (Pty) Ltd respectively to court in an urgent application to stop the municipality from awarding a P25 million tender to Powacom (Pty) Ltd.
The tender was initially awarded to Lejala who scored the highest number of points after bidding, but the decision was reversed after Powacom made an appeal before the tender appeals board which subsequently gave the tender to Powacom. Reading only the operative part of the ruling on Tuesday, Justice Lot Moroka said the matter was not urgent and should have been pursued using the normal court process.
Moroka then dismissed the urgent application with costs.
Previously, Lejala’s attorney Diba Diba submitted that the application was premised on the tender that the applicant had tendered for and scored high marks as compared to other bidders. “The respondents notified Lejala that it was the best adjudicated bidder and will enter into a contract with the applicant. Subsequent to that there was an appeal by the third respondent against the adjudication of the tender. Following that appeal, the first respondent issued another notice saying that the third respondent was the best bidder.
“The applicant made a complaint that it was not afforded a hearing when the decision to award the tender to the third respondent was taken. The applicant had a legitimate expectation that since it was the best adjudicated bidder, it will enter into a contract with the first respondent,” said Diba.
The decision to award the tender to the third respondent, Diba said, shows that COFC wanted to enter into a contract with Powacom within eight working days, hence Lejala brought the matter before court on an urgent basis.
“On August 19, 2017, the applicant was informed that an appeal was made by a third party with regard to the way the adjudication process took place. The appeals’ Board, chaired by the second respondent, took a decision to order for a re-adjudication of the tender process. The applicant made a complaint that it was not afforded a hearing prior to the revocation of the tender because they were given a legitimate expectation that they will be awarded the tender,” Diba said. He added that if COFC and Powacom enter into an agreement, the applicant would suffer irreparable harm, which can only be solved by an urgent interim interdict.
“The applicant has a prima facie right because he was informed by COFC that it was the best adjudicated bidder. The balance of convenience favours the applicant. Furthermore, if that expectation is taken away, it must be done in accordance with the rules of natural justice. It is that right that the applicant wants to protect,” said Diba.
In response to what Diba said, counsel for respondents, Mariam Mokgethi prayed with the court to dismiss the application because it was not urgent.
“We submit that this hearing is brought on a self-created urgency. The applicant was aware of the tender adjudication process since August 28, 2017 and waited for September 22 to take action. This matter could just have been brought through the normal court process. We submit that if the matter is brought through the normal court process, the applicant will not suffer any irreparable harm since the applicant can claim for damages through the normal court process,” said Mokgethi.
Mokgethi added that the applicant has not stated concrete reasons why the balance of convenience favours him.
Conversely, Mokgethi stated that the first and second respondent stand to suffer great prejudice if the tender decision is reversed.
Another defence attorney, David Olatotse said the basis upon which the application was made is unfounded.
“The applicant had conceded that it was invited to a hearing and never complained when a decision to award the tender to the third respondent was taken,” Olatotse said.