City of Cape Town v Aurecon South Africa (Pty) Ltd (5663/13) [2014] ZAWCHC 51 (14 April 2014)

City of Cape Town v Aurecon South Africa (Pty) Ltd (5663/13) [2014] ZAWCHC 51 (14 April 2014)

The court found that the respondent, Aurecon South Africa (Pty) Ltd, was precluded from bidding for the tender due to its prior involvement in preparing the draft scope of work, which was substantially incorporated into the final bid specification. This contravened clause 95 of the Supply Chain Management Policy and Regulation 27(4) of the Supply Chain Management Regulations, affording the respondent an unfair advantage and rendering the procurement process unfair. The court rejected the respondent's argument that only active participation in the Bid Specification Committee would trigger the prohibition, holding that the relevant provisions are broad enough to cover any involvement that...

Citation
[2014] ZAWCHC 51
Parties
Applicant: City of Cape Town; Respondent: Aurecon South Africa (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
14 April 2014
Case Number
5663/13
Procedural Posture
Review Application / Judgment
Outcome
The application for review is granted; the award of the tender and any resultant contract are set aside. The respondent's counter-application is dismissed with costs.
Judges
N J Yekiso
Legal Topics
Promotion of Administrative Justice Act, Municipal Procurement, Supply Chain Management, Conflict of Interest, Preferential Procurement, Judicial Review
Administrative Law Civil Procedure Commercial and Corporate Promotion of Administrative Justice Act Municipal Procurement Supply Chain Management Conflict of Interest Preferential Procurement +1 more

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Parties

City of Cape Town

Applicant

Aurecon South Africa (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the respondent was precluded from bidding for the tender due to prior involvement in drafting the scope of work.
  2. 2 Whether the procurement process was unfair and in contravention of the Supply Chain Management Policy and Regulations.
  3. 3 Whether the City's decision to award the tender to the respondent should be reviewed and set aside under PAJA.

Ratio Decidendi

The court found that the respondent, Aurecon South Africa (Pty) Ltd, was precluded from bidding for the tender due to its prior involvement in preparing the draft scope of work, which was substantially incorporated into the final bid specification. This contravened clause 95 of the Supply Chain Management Policy and Regulation 27(4) of the Supply Chain Management Regulations, affording the respondent an unfair advantage and rendering the procurement process unfair. The court rejected the respondent's argument that only active participation in the Bid Specification Committee would trigger the prohibition, holding that the relevant provisions are broad enough to cover any involvement that...

Court Disposition

The application for review is granted; the award of the tender and any resultant contract are set aside. The respondent's counter-application is dismissed with costs.

Orders

  • The award dated 31 October 2012 by the City's Supply Chain Management Bid Adjudication Committee of Tender 459C/2010/11 is set aside.
  • Any contract that may have come into existence between the City and the respondent as a result of the award is set aside.