Apex wants leave to appeal the order of November 29, 2024 where More Property Valuers (Pty) Ltd (More) was awarded part of the P32 million valuation package for the City. Apex has also applied for stay of execution of the court order. The dispute follows an award of a tender for a service contract for general valuation of rateable properties, maintenance and production of valuation roll in the City of Francistown from October 5, 2022 to November 2, 2022. The tender was divided into two packages which were initially won by Apex at amounts of P14.6 million for Package A and P17.2 million for Package B, on May 24 last year. Another bidder, More, subsequently lodged a complaint before the FCC’s Accounting Officer challenging both packages. The local authority subsequently revoked its initial award and entered into negotiations with MPV, who revised their bid down for Package A. By August, the FCC awarded Package A to More at an amount of P17.2 million. Apex subsequently dragged the council and MPV before the Procurement Tribunal.
In its hard-hitting ruling, a four-member panel of the Tribunal did not mince its words in slamming the FCC’s actions in the tender. The tribunal said allowing MPV to change its original bid price in order to be awarded Package A, was “grossly irregular, bordering on incompetency” on the part of the FCC. “The result of the so-called negotiations resulted in More Property Valuers slashing its bid price by over P29 million, an action clearly forbidden by the law,” Tribunal Judge President Kabelo Lebotse said. The tribunal was particularly unimpressed that the FCC had gone back to negotiate with an aggrieved bidder, after the award of the original tender, to reduce the prices involved in the tender. The move, Justice Lebotse said, was forbidden by both the Local Authorities Procurement and Asset Disposal Act (LAPAD) regulations as well as the Public Procurement Act regulations. “Both the LAPAD regulations and the Public Procurement regulations proscribe negotiations aimed at or that result in a change of the price in competitive (open) tenders. “Amendments are only allowed if they are aimed at correcting arithmetical errors and to correct minor errors, but such amendment should not change the substance of the bid. “The bid price forms the core substance of the bid.”
Justice Lebotse noted that the FCC in justifying the revocation of the award it had made to Apex, argued that it was not proper to award both packages to Apex as the Invitation to Tender had indicated that bidders would not be awarded both packages. He, however, stated that the award was withdrawn without affording Apex a hearing. In addition, Apex had offered a lower price and the margin between its price and that proposed by More Property price was quite substantial. “That the first respondent (FCC) revoked the award to the applicant (Apex) without reference to it and not even giving it the opportunity to make representations shows the callous manner in which the first respondent handled this tender process,” Lebotse said. The tribunal ordered that Apex be awarded both packages and the FCC process the tender accordingly. Feeling aggrieved by the decision of the Tribunal, More approached the High Court and the matter was allocated to Justice Dr Ookeditse Maphakwane of the Lobatse High Court. It was heard on November 27, 2024. According to court documents, Apex which had all along opposed the appeal suddenly changed heart on November 26, 2024 and filed a notice to abide.
The FCC on the other hand had already given notice to abide with the court decision. In his judgment, Justice Maphakwane states that although the appeal was not effectively opposed during hearing, the court still had to adjudicate and determine whether the appeal in law had merit. In its ground of appeal, More argued that the Tribunal erred in its determination that they had applied for just Package A while they had indeed applied for both packages. They also argued that the tribunal failed to apply its mind and in turn erred in fact and law by relying on repealed legislation being the LAPAD in its judgment in determining whether the Accounting Officer had the delegated authority to enter negotiations with the appellant. Furthermore, they argued that the Tribunal misdirected itself and as a result erred in fact and law in placing reliance of Regulation 56 of the PPR. “The said regulation refers to the closing date. Package A was and remains open as no contract has been entered into. More wanted the High Court to Order as follows: The Order of the Tribunal be set aside with costs; respondents pay the costs of the appeal; and any further and/or alternative relief be granted to the Appellant as the Court deems just and equitable. Justice Maphakwane ruled in favour of More and upheld the Appeal with costs.
He further set aside the order of the Tribunal, set aside the award of Package A made to Apex. He also ordered that the Accounting Officer’s decision to award Package A to More was confirmed and that the contract between the FCC and Apex be cancelled. FCC was also directed to conclude a fresh agreement on the terms of the tender award to More. FCC and Apex are to pay costs. According to Justice Maphakwane, Apex was never awarded Packages A and B but rather evaluated as the best adjudicated bidder in terms of the Public Notice of May 24 2023. “The above fact renders as erroneous and legal nugatory the Tribunal’s order because there was never such an award, which could be revoked but a mere adjudication as best bidder,” he said. Following the order, Apex have moved swiftly to seek an order declaring the matter as urgent. They want an order granting them leave to appeal the order to the Court of Appeal. They also want a stay of operation of the order.
In his founding Affidavit, Maje Maje, Director of Apex states that they and FCC on September 18, 2024 entered into an agreement for valuations services. “More then lodged a series of unsuccessful applications for stay of the judgment and orders of the Tribunal and upon the last of the applications being dismissed, the City Council and Apex entered into an agreement for valuation services on September 18, 2024,” he states. Maje argues that on their appeal, More raised issues that were never before the Tribunal hence they did not oppose. He argued that they are already 60% done with the project and that the first invoice has since been issued to FCC. He argues cancellation would be prejudicial not only to Apex, but also to rate payers as the City Council would be obliged to pay Apex and More for the same work.
