CoF, contractor in legal brawl
Lebogang Mosikare | Wednesday October 4, 2017 17:46
The contractor, Lejala Electrical (Pty) Ltd has cited CoF, the chairperson of CoF tender Appeals Board and Powacom Pty Ltd respectively as respondents
in the matter. Motivating reasons why the matter was urgent, 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,” Diba said. The decision to award the tender to the third respondent, Diba said, shows that COF 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,” Diba said.
He added that if COF 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 COF 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,” Diba said. In response, 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,” Mokgethi said. Mokgethi added that 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. Justice Lot Moroka will deliver judgment in the matter on October 10.