Hitecon had sought a court intervention citing irregularities after it was allegedly disqualified from the 2023 controversial tender for failing to provide a list of local sub contractors. The tender was allegedly awarded to Zhong Gan Engineering. The Hitecon company reportedly upon learning about the tender being awarded to Zhong Gan approached court wanting among others a rule nisi (temporary order) to interdict and restrain the respondents from proceeding with the procurement process and freezing the procurement process pending a review application. Justice Zein Kebonang, recently when confirming the rule nisi issued on May 14, 2024 to interdict and restrain the respondents, explained that the decision to disqualify the company on grounds that it had not provided a list of citizen sub contractors when that was not the requirement in the Invitation to Tender (ITT) was irrational and improper. “By qualifying the applicant’s bid on a criterion not specified in the ITT, the respondents committed prima facie reviewable irregularity. On this ground alone, the applicant has been able to establish upon examination a right entitling it to the interdict,” he said. The judge said the applicant had contended that if the interdict is not obtained, its appeal rights before the Tribunal as well as the review application, will be rendered null and void.
The judge emphasised that in terms of the Procurement Act, the Tribunal can only suspend a procurement process or performance where a contract has not been concluded and that where, however, the contract has been concluded, it shall become irrevocable and its execution shall proceed without interruption whether the award decision by the Accounting Officer may in itself remain disputable by a contractor through the Tribunal. “On all these considerations, it is clear that the applicant will have no alternative relief in due course and the balance of convenience favour the granting of the interdict,” Justice Kebonang said. Justice Kebonang further explained that the applicant also contended that the decision to disqualify it was irrational because its bid was disqualified on a criterion that was not spelt out in the ITT. He pointed out that the company said it was disqualified on the basis that it had failed to provide a list of its proposed citizen sub contractors in its bid documents when that was not a requirement. “It also says the company awarded tender cited as third respondent was unlawfully awarded the tender when it should have been disqualified as it had not participated in the compulsory pre-tender meeting,” he said. The judge stated that as a general rule, it is for a procuring entity and not the court to decide the prerequisite for a valid tender and whether or not a tender offer is correctly disqualified must therefore be evaluated from such a perspective. He explained that failure to comply with prescribed conditions will usually result in a bidder being disqualified. Justice Kebonang noted that in the instant case, the ITT stated that preference margins will be applied to qualifying bidders in line with the Economic Diversification Drive (EDD) and the Citizen Economic Empowerment Policy. “There is certainly a difference between preference margins, which are the extra mark up on price allowed for any domestic contractor or supplier bidding under a Competitive Bidding without being otherwise disadvantageous to the bid in terms of price and providing or drawing a list of sub contractors,” he stated. In conclusion, he explained that regarding other requirements for granting interim interdict, although the Zhong Gan company has been awarded the tender, it is yet to sign the contract with the procuring entity and that the company has denied mobilising to be on site on reasons that it cannot do so until it has signed a contract and has fulfilled conditions precedents in the award.
