Crowie Projects (Pty) Ltd v Durban University of Technology and Others (5612/10) [2012] ZAKZDHC 93 (30 November 2012)

Crowie Projects (Pty) Ltd v Durban University of Technology and Others (5612/10) [2012] ZAKZDHC 93 (30 November 2012)

The court found that the RFQ and RFP documents contained clear and comprehensive disclaimers excluding the DUT's liability for any costs incurred by bidders at any stage of the procurement and negotiation process. The applicant's interpretation seeking to limit the exclusion to pre-appointment expenses was inconsistent with the language and intent of the documents. The court further held that there was no evidence of bad faith or fraud on the part of the DUT; the breakdown in negotiations was due to the applicant's failure to provide a viable financial model and meet deadlines. The decision to re-tender was made following proper process and legal advice. Accordingly, the applicant's claim...

Citation
[2012] ZAKZDHC 93
Parties
Applicant: Crowie Projects (Pty) Ltd; Respondent: Durban University of Technology; Respondent: Minister of Higher Education
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
30 November 2012
Case Number
5612/10
Procedural Posture
Review Application / Final Judgment
Outcome
Application dismissed with costs, including all reserved costs and those consequent upon the employment of two counsel.
Judges
Desai
Legal Topics
Tender Process, Contractual Exclusion of Liability, Out of Pocket Expenses, Bad Faith in Negotiations
Commercial and Corporate Civil Procedure Tender Process Contractual Exclusion of Liability Out of Pocket Expenses Bad Faith in Negotiations

Case Brief

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Parties

Crowie Projects (Pty) Ltd

Applicant

Durban University of Technology

Respondent

Minister of Higher Education

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to recover out-of-pocket expenses incurred after being selected as preferred bidder for the Student Village Project.
  2. 2 Whether the disclaimer in the RFQ and RFP documents contractually excludes the DUT's liability for such expenses.
  3. 3 Whether the DUT acted in bad faith or fraudulently in terminating negotiations and cancelling the preferred bidder status.

Ratio Decidendi

The court found that the RFQ and RFP documents contained clear and comprehensive disclaimers excluding the DUT's liability for any costs incurred by bidders at any stage of the procurement and negotiation process. The applicant's interpretation seeking to limit the exclusion to pre-appointment expenses was inconsistent with the language and intent of the documents. The court further held that there was no evidence of bad faith or fraud on the part of the DUT; the breakdown in negotiations was due to the applicant's failure to provide a viable financial model and meet deadlines. The decision to re-tender was made following proper process and legal advice. Accordingly, the applicant's claim...

Court Disposition

Application dismissed with costs, including all reserved costs and those consequent upon the employment of two counsel.

Orders

  • The application is dismissed with costs, including all reserved costs and those consequent upon the employment of two counsel.