Comps Waste Services (Pty) Ltd v Chairperson: Northern Cape Tender Board and Others (324/04) [2005] ZANCHC 9 (1 January 2005)

IN THE HIGH COURT OF SOUTH AFRICA

(Northern Cape Division)

Saakno: / Case number: 324/04

Datum verhoor: / Date heard: 15/08/2005

Datum gelewer: / Date delivered: / /2005

In the matter between:

COMPASS WASTE SERVICES (Pty) LTD Applicant

and

THE CHAIRPERSON:

NORTHERN CAPE TENDER BOARD 1st Respondent

THE MEC FOR FINANCE:

NORTHERN CAPE PROVINCE 2nd Respondent

THE MEC FOR HEALTH:

NORTHERN CAPE PROVINCE 3rd Respondent

MILLENNIUM WASTE MANAGEMENT 4th Respondent

Coram: Lacock J et Molwantwa AJ

JUDGMENT

LACOCK J:

In June 2003 the Northern Cape Provincial Tender Board (the Board) invited persons to tender for “The Collection, Loading, Removal And Disposal Of Bio-Hazardous Health Care Waste From All Northern Cape Provincial Health Institutions For A Period of 24 Months Required By: Department of Health: Northern Cape Provincial Administration” (the tender).

The applicant and the fourth respondent, Millennium Waste Management (Pty) Ltd, (Millennium) and two others submitted tenders to the Board. The Board awarded the tender to Millennium despite the fact that the applicant scored the highest points in accordance with the framework prescribed in sec. 2 of the Preferential Procurement Policy Framework Act, no. 5 of 2000 (the PPPF Act).

The applicant now applies for an order whereby the aforesaid decision of the Board be reviewed and set aside, that the tender be awarded to the applicant, alternatively, that the tender be remitted back to the Board for re-decision, and costs.

At the hearing of this matter, Mr Pammenter SC for the applicant, applied for leave to file a supplementary affidavit deposed to by attorney Donnelly, and in which he dealt with the reasons for the late filing of the review application. The respondents did not oppose this application, and we therefore allowed the affidavit and ordered that the costs of the application be costs in the cause.

On 8 and 10 August 2005 (i.e. 7 and 5 days prior to the hearing of this matter) the first respondent filed two applications for leave to file supplementary affidavits. The sole issue dealt with in these affidavits relate to the composition of the Board and the question whether the Board was properly constituted in terms of the Northern Cape Tender Board Act, no. 2 of 1994, when the relevant tenders were considered and the tender awarded to Millennium.

Mr Halgryn, on behalf of the first respondent, withdrew both applications. Mr Pammenter, however, applied on behalf of the applicant to allow these affidavits since, so he submitted, the contents of the affidavits may indicate that the Board was not properly constituted, alternatively, did not form a quorum, when the tender was awarded to Millennium. The respondents opposed this application.

We dismissed the application. These are our reasons for having dismissed the application:

It was not contended on behalf of the applicant in its founding papers that the Board was not properly constituted or that no quorum was present when the tender was awarded to Millennium.

This issue was not raised by the applicant as a ground for the review of the Board’s decision. On the contrary, it was alleged on behalf of the applicant in the supporting affidavit of Mr Du Randt that, “The First Respondent is The Chairperson of the Northern Cape Tender Board, who is cited herein as the respresentative of the Northern Cape Tender Board (‘The Tender Board’) which was duly constituted in terms of the provisions of the Northern Cape Provincial Tender Board Act, no. 2 of 1994 and has its offices …” (emphasis supplied).

Notice was given for the first time to the respondents that the applicant intended to rely on this issue on the day preceding the hearing of the matter, which was a Sunday. This afforded the respondents, and more particularly the fourth respondent, insufficient time to investigate these issues and to respond properly thereto.

The applicant did not timeously or at all apply for the filing of a further supplementary affidavit to supplement its grounds for the review of the Board’s decision.

I now turn to the merits of the main application.

The grounds for the review of the Board’s decision are formulated as follows in the applicant’s founding affidavit,

In terms of Section 2(1)(f) of the Preferential Procurement Policy Framework Act No. 5 of 2000 (‘the PPPF Act’) the contract had to be awarded to the tenderer who scored the highest points (the Applicant) unless objective criteria justified the award to another tenderer;

The criteria used by the Tender Board not to award the tender to the Applicant were:

Not objective; Based on a lack of understanding of the autoclaving process and the calculation of the Applicant’s transport costs;

The Tender Board did not apply its collective mind, alternatively did not do so properly to:

Determining the preferred method of disposing of medical waste; The fact that autoclaving is a tried and tested procedure; The proper calculation of the Applicant’s transport costs and the feasibility thereof;

The Tender Board did not afford the Applicant the opportunity to make representations:

To address the Tender Board’s apprehension about autoclaving; To explain the Applicant’s method of calculation of the Applicant’s transport rate;

Had the Tender Board:

Properly applied the provisions of the PPPF Act; Properly applied its collective mind to the issues referred to above; Granted the Applicant the opportunity to be heard on the issues which concerned the Tender Board, namely autoclaving as a method of disposal of medical waste and the calculation of the Applicant’s transport rate,

It ought to have awarded the tender to the Applicant.”

It is common cause that the applicant tendered to dispose of the medical healthcare waste by a process known as autoclaving, i.e. a technology whereby healthcare waste is sterilized under pressure using high temperature steam to destroy micro organisms. The sterile waste is then shredded and dumped in a landfill site.

Millennium tendered to dispose of the medical health care waste by means of incineration, i.e. the burning of waste to ashes at extremely high temperatures, and which ash then requires landfill disposal.

The board, in its letter to the applicant dated 18 November 2003 advised that,

“The above tender was evaluated and awarded in terms of the Preferential Procurement Policy Framework Act and the conditions and specifications as contained in the tender documents.

Your tender was unsuccessful due to:

The new method of waste disposal which has not been tested in the Province. The kilometer rate (R/Km) is exceptionally low and was a matter of concern.”

Three main issues need to be addressed in this judgment. The first is whether the delay in the prosecution of the review application rendered the relief applied for of academic interest only. The second is whether the applicant’s tender was in accordance with the tender specifications. The third issue, and which becomes only relevant once the aforesaid two issues are determined in favour of the applicant, is whether the decision of the Board should be reviewed and set aside in accordance with the applicable legislation and accepted principles.

The Matter of Delay

Two questions are apposite in regard hereto.

The first is whether the applicant failed to bring his review application within a reasonable time of the date the tender was awarded to Millennium.

It is trite that an applicant who fails to bring a review application within a reasonable time may forfeit his right to have the administrative action complained of reviewed and set aside, unless the delay is satisfactorily explained. (Lion Match Co. Ltd. v Paper Printing Wood & Allied Workers Union, 2001(4) SA 149 (SCA) at 156H tot 157B).

In casu, the applicant was informed of the Board’s decision on 29 October 2003, the application was filed on 25 March 2004, i.e. almost five months after the decision came to the applicant’s notice, and was only enrolled on 18 April 2005. On the face of it, this period may seem to be unreasonably long, but attorney Donnelly in the supplementary affidavit referred to in par. 2 above, comprehensively explained the reasons for the delay.

It appears that the said attorney addressed a letter to the Board on 25 November 2003 requesting inter alia information regarding the constitution of the Board, a transcript of the Board’s deliberations and a copy of the minutes of the relevant Board meeting. Further correspondence was exchanged and on 28 January 2004 a response was received from the Board “which set out the basis for its decision giving rise to this review”. Counsel was briefed in February 2004, and the application was served on 25 March 2004

The Board failed to provide the relevant record of proceedings within 15 days of service of the Notice of Motion as stipulated in the notice. Despite numerous requests and threats by the attorneys for the applicant, the Board failed to file the record of proceedings until 20 October 2004. Henceforth all reasonable steps were taken by the applicant to finalise the papers and to have the matter enrolled.

It is clear from the aforesaid that the delay had been satisfactorily explained, and that the applicant cannot be blamed for the delay in the prosecution of the review application.

The second and more pertinent question is whether the granting of the relief prayed for in the notice of motion will have any practical effect. It is again trite that a Court will not entertain a dispute between parties to answer abstract, academic or hypothetical questions. (Anglo-Transvaal Collieries v SA Mutual Life Assurance 1977(3) SA 631(T) at 635 (approved on appeal in SA Mutual Life Assurance v Anglo-Transvaal Collieries 1977(3) SA 642(A) at 655D); Zantsi v Council of State, Ciskei & Others, 1995(4) SA 615 (CC) at 619B; Tri-Cor Industries (Pty) Ltd v Chairman of Mpumalanga Tender Board (1997) 4 All SA 414 (T) at 420 f to h); Radio Pretoria v Chariman ICASA, 2005(1) SA 47 (SCA).

The written invitation to submit tenders was dated 30 May 2003. The closing date for the submission of tenders was 4 July 2003. Tenderers were invited to tender for the delivery of the relevant services ‘for a period of 24 months”.

The Millennium tender was accepted by the Department of Health during August 2003. In September 2003 the Board successfully negotiated a reduction in the tender price with Millennium, and the contract for the delivery of the relevant services was thereafter awarded to Millennium. The 24 months contract period commenced on 1 November 2003, and will expire on 31 October 2005. It is common cause that Millennium has since 1 November 2003 being, and is presently still, rendering the services.

This application was heard on 15 August 2005, i.e. 2 ½ (two-and-a-half) months prior to the expiry of the tender period of 24 months.

During argument before us, Mr Pammenter had abandoned prayer 2 of the notice of motion (that this Court award the tender to the applicant), and conceded that, should the decision of the Board be reviewed and set aside, the matter should be remitted back to the Board for re-decision. He further submitted, properly so in my view, that the Board should inform Millennium and the other two tenderers of the applicant’s tender based on autoclaving and that that tender will be considered by the Board. It follows that a reasonable opportunity should be allowed for the other tenderers to respond to this notification.

No matter how soon after the hearing this judgment is delivered, the probabilities for the Board to properly reconsider the tenders before 31 October 2005, are for all practical purposes non-existent.

There is a further and more fundamental reason for not disturbing the status quo at this late stage. The Provincial Government is constitutionally bound to provide proper health care services to the public (sections 7(2) and 27 of the Constitution of the Republic of South Africa, and Schedule 4 thereto). Concomitantly, the public has a fundamental right to proper health care services as enshrined in sec. 27 of the Constitution. The immediate disturbance or termination of the services rendered by Millennium may pose a real threat to the wellbeing of the people of the Northern Cape. It requires no evidence to appreciate the dangers to public health should proper care not be taken of the disposal of bio-hazardous healthcare waste. The immediate termination of the relevant services presently rendered by Millennium will be irresponsible and contrary to the public interest.

Mr. Pammenter conceded that, by reason of the aforesaid, the termination of the Millennium contract before 31 October 2005 is neither practical nor feasible and should not be ordered. He submitted however, that the setting aside of the Board’s decision will not be of academic interest only, since the Board will then be obliged to reconsider the tenders and to again award the tender “for a period of 24 months”. The Department of Health, so Mr Pammenter argued, did not prescribe a date on which the 24 month period had to commence, but merely stipulated a contract period of 24 months.

Therefore, counsel submits, nothing prevents the Board from awarding the tender afresh for a period of 24 months. To my mind these submissions are untenable.

The Department of Health requested the Board to procure on its behalf the services of a person to dispose of healthcare waste for a specified period of 24 months. One can accept that the Department of Health was familiar with the tender procedure that had to ensue. It is common cause that the tender specifications were prepared by the Department. This probably included the closing date for the submission of tenders. It can therefore be accepted that the Department had a reasonably fair idea of – or at least anticipated within reasonable margins the date on which the services were to commence. The Department required the services for a specified period of 24 months only as from the date of commencement. The department certainly had its reasons for limiting the duration of the contract to 24 months.

To now compel the Board to – after the expiry of the Millennium contract – consider and award a tender afresh for another period of 24 months, will be directly in conflict with the original request of the Department. It will amount to nothing less than forcing a contract upon the Department which was not requested and may not even be required.

The Board is not statutorily authorised to act in this manner, and this Court is therefore precluded from directing the Board to perform an act falling outside the ambit of its statutory competence.

It is no answer to the aforesaid impasse to suggest, as counsel did, that the Board can now take into account the present needs and requirements of the Department or the absence thereof. The purpose and effect of the setting aside of the Board’s decision and remitting the matter back to the board, is to compel the Board to reconsider the tenders submitted on the information supplied in response to the tender specifications contained in the tender documentation. Any change in circumstances or requirements from the perspective of the Department will render the reconsideration of the tenders futile.

To my mind, this matter is not of any real significance or importance to tenderers in general to warrant a judgement on the issues in dispute. The chances for a similar situation to present itself appear to be remote, and rather the exception than the rule. By reason of the aforesaid I conclude that the granting of the relief claimed in the review application will have no practical effect, and will be of academic interest only. For this reason alone the application cannot succeed.

Since I am of the opinion that the application should also fail on the second main issue, I propose to deal with that issue as well.

Compliance / Non-Compliance With Tender Specifications

Mr Wasserman for Millennium and Mr Halgryn for the Board approached this issue from somewhat different angles.

Mr Wasserman submitted that the tender documentation should be interpreted in accordance with the applicable canons of interpreting a written contract, and, if so construed, it is evident that tenderers were invited to tender for the disposal of healthcare waste by incineration alone. Disposal of the waste by any other process was excluded.

Mr Halgryn, whilst supporting the interpretation of the tender documentation placed upon it by Mr Wasserman, submitted that the more fundamental enquiry should be whether the Board, by accepting that the Department required the waste to be disposed of by incineration exclusively, acted reasonably by not awarding the tender to the applicant as the tenderer scoring the most points.

Mr Pammenter countered these submissions by submitting that, on a proper interpretation of the tender documents, the applicant was not precluded from submitting a tender based on autoclaving. He further submitted that, if the board considered itself bound by the tender specifications prescribed by the Department, and more particularly the process of waste disposal, it misconstrued its statutory functions.

A convenient starting point will be to first determine what prospective tenderers were invited to tender for.

The introductory section of the first page of the tender document reads as follows:

“You are invited to tender for the above-mentioned service according to the attached tender documents, specifications and conditions of the tender…” (emphasis supplied).

The following relevant provisions are contained in the tender specifications bearing upon the method or process of disposal:

Tenderers are required to indicate whether they own an incinerator. Should the tenderer not be the owner of an incinerator he/she should at least rent an incinerator. A copy of the rental agreement must be attached.

Tenderer must have a depot based in Kimberley should the tenderer’s incinerator not be located in the Northern Cape Province.

The contractor shall take full and total responsibility for the collection, loading, removal and transportation of waste from storage areas at the institutions, to the final storage and disposal through incineration of the bio-hazardous healthcare waste, inclusive of disposal of residual solids on a permanent class H:H landfill site. Disposal of residual solids shall be in accordance with the Department of Water Affairs and Forestry guidelines ‘Minimum requirements for the handling and disposal of hazardous waste’. The management of the institutions will designate the central storage area(s).

The contractor shall in the event of a protracted incinerated breakdown, necessitating burial of hazardous healthcare waste, use only a permitted Class H:H landfill site and obtain approval from Department of Water Affairs and also notify the relevant health authorities. Disposal of the waste in the aforementioned manner shall be in accordance with the Department of Water Affairs and Forestry guidelines “Minimum requirements for the handling and disposal of hazardous waste’. A copy of the most recent certificate must be submitted with the tender.

The contractor shall incinerate all single use containers together with the contents thereof within 24 hours of the scheduled removal from the collection points indicated under paragraph 4.1 or notification that removal is required. Where and when necessary the contractor shall provide adequate measure for transportation and proper storage on the contractor’s site, if incineration within 24 hours is not possible.

INCINERATION

The incinerator, used by the contractor for the incineration of hazardous healthcare waste in terms of this tender, shall comply with the latest editions of the following Standards, Acts and Regulations:

Multi-chamber controlled air incinerator, which shall be permitted as a Class 2B-1 incinerator in Guidelines for Chief Air Pollution Control Officer Schedule 39 Process by Department of Environmental Affairs and Tourism.

Hazardous Substance Act, No 15 of 1973.

Occupational Health and Safety Act, No 85 of 1993 and Regulations.

Atmospheric Pollution Prevention Act, No 45 of 1965 (Clean Air Act).

Waste and Environmental Legislation, in order to deal with waste having a wide variation in burning characteristics from highly volatile, high calofiric value plastic to high water content material such as placentas.

The incinerator shall be able to handle cyto-toxic substances.

The incinerator shall be capable of incinerating all waste destined for incineration generated by health facilities. Alternative arrangements to dispose of waste known to contain appreciable quantities of halogens, sulphur or heavy metals. Disposal of the latter shall be in accordance with the Department of Water Affairs and Forestry Guidelines ‘Minimum requirements for the handling and disposal of hazardous waste’.

The capacity of the incinerator to handle all specified waste generated by participating health institutions shall be guaranteed by the contractor, so that having to landfill will be the unavoidable last resort if permission is granted by Department of Water Affairs and Forestry.

Tenderer must submit a copy of the certificate of approval, issued by the Chief Air Pollution Offer of National Department of Water Affairs and Forestry in terms of the Atmospheric Pollution Prevention Act, No 45 of 1965, of the incinerator that they propose to use to provide the service.” (emphasis supplied).

To my mind the contents of these documents and specifications are clear and unambiguous. Persons were invited to tender for the disposal of healthcare waste by means of incineration.

The applicant tendered for the disposal of healthcare waste by means of autoclaving. Autoclaving is a completely different process from incineration. No reference to autoclaving or any other process of waste disposal is to be found in the tender documents. The applicant’s tender is therefore not in compliance with the “tender documents, specifications and conditions of tender”. (Metro Projects CC v Klerksdorp Local Municipality, 2004(1) SA 16 (SCA) at par. 15).

The fact that the board considered and scored the applicant’s tender, is of no relevance. Had the tender been awarded to the applicant, that decision would no doubt have fallen to be reviewed as being procedurally unfair in terms of sec. 3 of the Promotion of Administrative Justice Act, no 3 of 2000 (PAJA). What is of relevance is whether the tender submitted by the applicant, objectively considered, was in accordance with the tender documents and specifications. (Pharmaceutical Manufactures Association of SA in re Ex Parte President of the RSA 2000(2) SA 674(CC) at 708F).

Mr Pammenter relied on the following extracts contained in the tender documentation in support of his submission that the documentation provided for alternative methods of disposal:

The tender forms should not be retyped or redrafted but photocopies may be prepared and used. Additional offers may be made for any item but only on a photocopy of the page in question or on other forms obtainable from the Head of Procurement: Office of the Provincial Tender Board, Private Bag X5054, Kimberley 8300. Additional offers made in any other manner may be disregarded.

Where items are specified in detail, the specifications form an integral part of the tender document and tenderers shall indicate in the space provided whether the items offered are to specification or not.

In respect of the paragraphs where the items offered are strictly to specification, tenderers shall insert the words ‘specified’.

In cases where the items are not to specification, the deviation from the specifications shall be indicated.

The Board may accept any offer for a specific supply or the rendering of a specific service to the State or for the purchase of specific supplies from the State notwithstanding the fact that such offer was not made in response to a tender invitation or does not conform to the tender conditions or specifications set out in the tender documents.”

These provisions are clearly of general application and subject to the main specifications of the tender. To my mind none of these provisions can be interpreted as allowing a tenderer to submit a valid tender based on autoclaving whilst incineration had been clearly and unambiguously prescribed as the method for disposal of the waste.

Mr Pammenter further submitted that the Board was duty bound to consider the applicant’s tender and that the Department’s preferred method of incineration was not binding on the Board. In this regard reliance was placed on sec. 24 of the Constitution and sec. 4 of the Northern Cape Tender Board Act of 1994 which latter enactment gives the Board the “sole power to procure supplies and services for the Province”.

The awarding of the tender to Millennium did not amount to the violation of the provisions of sec. 24 of the Constitution. That section reads as follows:

“Everyone has the right-

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that-

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

The wording of sec. 4(1) of the Northern Cape Tender Board Act quoted above, so it appears to me, says no more than that the Board is the exclusive vehicle for the procurement of services and supplies for the Province. It can not be interpreted as meaning that the Board can dictate to organs of State what the nature of the services and supplies should be, unless, of course, the choice is left to the board. It goes without saying that the Board will be entitled to exercise a discretion within parameters of reasonableness when procuring supplies and services, but this is a far cry from ignoring specified supplies or services. Particularly where such supplies or services are of a sensitive or specialised nature.

Even if I have misconstrued the discretionary powers of the Board, the question still remains whether the Board acted reasonably by adhering to the specifications as prescribed by the Department of Health. Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs, 2004(4) SA 490(CC) at 512H to 513D:

“In determining the proper meaning of s 6(2)(h) of PAJA in the light of the overall constitutional obligation upon administrative decision-makers to act 'reasonably', the approach of Lord Cooke provides sound guidance. Even if it may be thought that the language of s 6(2)(h), if taken literally, might set a standard such that a decision would rarely if ever be found unreasonable, that is not the proper constitutional meaning which should be attached to the subsection. The subsection must be construed consistently with the Constitution, and in particular s 33 which requires administrative action to be 'reasonable'. Section 6(2)(h) should then be understood to require a simple test, namely that an administrative decision will be reviewable if, in Lord Cooke's words, it is one that a reasonable decision-maker could not reach.

What will constitute a reasonable decision will depend on the circumstances of each case, much as what will constitute a fair procedure will depend on the circumstances of each case. Factors relevant to determining whether a decision is reasonable or not will include the nature of the decision, the identity and expertise of the decision-maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of the competing interests involved and the impact of the decision on the lives and well-being of those affected. Although the review functions of the Court now have a substantive as well as a procedural ingredient, the distinction between appeals and reviews continues to be significant. The Court should take care not to usurp the functions of administrative agencies. Its task is to ensure that the decisions taken by administrative agencies fall within the bounds of reasonableness as required by the Constitution.”

The Board’s reasoning can be summarised as follows:

The specifications contained in the tender documents were prepared by the Department and supplied to the Board for procurement of the required services.

It was accepted that the Department best knew what its requirements were, since the disposal of healthcare waste is a sensitive issue that has environmental consequences. The Board was therefore guided by the specifications as supplied by the Department.

Not only was incineration as the process for waste disposal prescribed by the Department, but cognisance was taken of the objective fact that incineration was a tried and tested method for the disposal of healthcare waste.

Autoclaving had not been used in the Northern Cape and the Board was hesitant to “test” this method and therefore opted for a bio-hazardous healthcare waste disposal method best known to the Northern Cape Department of Health, i.e. incineration.

Can it be said that the decision of the Board was “one that a reasonable decision-maker could not reach”?

Mr Pammenter submitted that if the Board had any reservations with regard to autoclaving, it should have acted in terms of sec. 4(1)(c) of the Northern Cape Tender Board Act, i.e. to invite expert advice or to allow the applicant an opportunity to address the Board on any queries. This however, is no answer to the question whether the Board acted reasonably in adhering to the Department’s specifications of incineration.

Mr Pammenter further submitted that in terms of sec. 4(1)(a) and (b), of the Northern Cape Tender Board Act, and which sections should be interpreted purposively, the Board should not have “rubber stamped” the specifications supplied by the Department, but was obliged to consider other methods of waste disposal as well. Its omission to act accordingly, so argues Mr. Pammenter, rendered its decision unlawful and procedurally unfair. (Logbro Properties CC v Bedderson NO & Others, 2003(2) SA 460 at pars. 5 to 7).

I cannot agree with these submissions. To my mind the Board did not act unreasonably in accepting the Department’s specifications and having concluded that the applicant’s tender did not meet the prescribed specifications.

The reasons for its decision as stipulated in par. 16 are reasonable. In the wording of PAJA, the decision is rationally connected to the purpose for which it was taken and the information placed before the Board. The test is not whether this Court disagrees with the approach of the Board, but rather whether the action of the Board was within its statutory power and whether it, viewed objectively, acted rationally or reasonably.

“Rationality in this sense is a minimum threshold requirement applicable to the exercise of all public power by members of the Executive and other functionaries. Action that fails to pass this threshold is inconsistent with the requirements of our Constitution and therefore unlawful. The setting of this standard does not mean that the Courts can or should substitute their opinions as to what is appropriate for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionary's decision, viewed objectively, is rational, a Court cannot interfere with the decision simply because it disagrees with it or considers that the power was exercised inappropriately.”

(Pharmaceutical Manufacturers (supra) at 709 D to F).

Sec. 4(1) of the Northern Cape Tender Board Act is couched in discretionary terms. Strict and compulsory compliance with the contents of sub-paragraphs (a) to (j) is not required. The overall enquiry is still, having regard to the aforesaid guidelines and the applicable provisions of the Constitution and the PPPF Act, whether the Board acted reasonably, and not whether this Court “considers that the power was exercised inappropriately”. To have been guided by the Department in regard to its requirements is, to my mind, not unreasonable. By accepting that the Department would know best what is required, is not unreasonable. By accepting that incineration was a tried and tested method of healthcare waste disposal, known to the Northern Cape Department of Health, is not unreasonable. To have been hesitant to introduce an unknown and more recent method of waste disposal, is not unreasonable.

There is a further reason why the decision of the Board not to award the tender to the applicant, was a proper and the correct one.

Viewed objectively, tenderers were invited to tender for the disposal of the healthcare waste by incineration. One of the objects of a lawful, reasonable and fair tender process is to allow tenderers to compete on an equal footing. “One of the requirements of such a procedure is that the body adjudging tenders be presented with comparable offers in order that its members should be able to compare. Another is that a tender should speak for itself. Its real import may not be tucked away, apart from its terms. Yet another requirement is that competitors should be treated equally, in the sense that they should all be entitled to tender for the same thing”.

Premier Free State & Others v Firechem Free State (Pty) Ltd, 2000(4) SA 413 (SCA) at 429H to I. Had the Board awarded the tender to the applicant, such action would have militated against the aforesaid principle.

Mr Pammenter was constrained to concede that the Board would have acted improperly if the applicant’s tender was seriously considered without informing the other tenderers that a tender based on autoclaving would be considered. The reason for the obligation to convey this intended consideration to the other tenderers can only be to allow them the opportunity to tender on an equal footing. The opposite is also true: by not affording the other tenderers the opportunity to tender on autoclaving, would amount to unfair favouritism towards the applicant and denying others the benefit of competing on level playing fields.

I am therefore persuaded that the applicant’s tender was not in compliance with the tender specifications, and that the Board acted properly in not awarding the tender to the applicant.

Having come to the aforesaid finding, I deem it unnecessary to deal with the third main issue.

Mr Pammenter submitted that, in the event of this Court finding against the applicant on the first main issue, the Board should be ordered to pay the applicant’s costs since the late filing of the application was primarily due to the remissness of the Board to timeously make its records available. This submission is not without merit. The uncontested evidence reveals that, despite a proper demand served on the board on 15 December 2003, the full records of the relevant proceedings were only served on the applicant’s attorneys on 12 October 2004. On the other hand, as was pointed out by Mr Halgryn, the applicant could have invoked the applicable mechanisms provided in the Court rules, to secure the timeous filing of the records, but failed to do so. I am furthermore mindful of the fact that the issue of delay was not the only reason for dismissing the application.

Having regard to all the circumstances, I conclude that it will be just and fair to disallow the first respondent (and, in so far as this may be relevant, the second and third respondents) its costs.

No reason had been advanced for disallowing the fourth respondent its costs. Mr Wasserman requested us to provide for the costs of two counsel. Mr Pammenter, himself being assisted by junior counsel, did not convincingly object to this request.

The following order is therefore made:

The application is dismissed.

The applicant is ordered to pay the costs of the fourth respondent; such costs to include the costs of two counsel.

No order is made in respect of the costs of the first, second and third respondents.

_______________

HJ Lacock

JUDGE

I concur.

BC Molwantwa

ACTING JUDGE

For the applicant: Adv CJ Pammenter SC & Adv V Vermooten (instructed by Duncan & Rothman)

For the 1st respondent: Adv L Halgryn (instructed by Robertson & Du Toit)

For the 2nd to 4th respondent: Adv JG Wasserman SC and Adv PT Rood (instructed by Engelsman, Benade & Van der Walt)