CTP Limited and Others v Director-General Department of Basic Education and Others (447/2018) [2018] ZASCA 156 (20 November 2018)

CTP Limited and Others v Director-General Department of Basic Education and Others (447/2018) [2018] ZASCA 156 (20 November 2018)

The Supreme Court of Appeal found that the Bid Evaluation Committee's consensus-seeking approach, which involved moderating only CTP JV's scores and not Lebone Consortium's, resulted in unequal treatment and procedural unfairness. This deviation from the prescribed implementation guide was not justified and compromised the constitutional requirements of fairness, equity, transparency, and competitiveness in public procurement under section 217 of the Constitution. The court held that the exclusion of CTP JV from further consideration was not objectively fair and that the decision to award the tender to Lebone Consortium was constitutionally invalid. While the opinion of independent senior...

Citation
[2018] ZASCA 156
Parties
Appellant: CTP Limited; Appellant: Bongani Rainmaker Logistics (Pty) Ltd; Appellant: Ndabase Printing Solutions CC; Respondent: Director-General Department of Basic Education; Respondent: Minister of Basic Education; Respondent: Lebone Litho Printers (Pty) Ltd; Respondent: Novus Holdings Limited; Respondent: UTI SA (Pty) Ltd; Respondent: Minister of Finance; Respondent: National Treasury Transversal Contracting Office
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
20 November 2018
Case Number
447/2018
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal upheld; the decision to award the tender to Lebone Consortium declared constitutionally invalid; declaration of invalidity suspended until 31 March 2020; costs awarded to appellants.
Judges
Shongwe, Willis, Zondi, Mathopo, Mokgohloa
Legal Topics
Public Procurement, Procedural Fairness, Constitutional Invalidity, Preferential Procurement Policy Framework Act, Bid Evaluation, Promotion of Administrative Justice Act
Administrative Law Civil Procedure Commercial and Corporate Public Procurement Procedural Fairness Constitutional Invalidity Preferential Procurement Policy Framework Act Bid Evaluation +1 more

Case Brief

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Parties

CTP Limited

Appellant

Bongani Rainmaker Logistics (Pty) Ltd

Appellant

Ndabase Printing Solutions CC

Appellant

Director-General Department of Basic Education

Respondent

Minister of Basic Education

Respondent

Lebone Litho Printers (Pty) Ltd

Respondent

Novus Holdings Limited

Respondent

UTI SA (Pty) Ltd

Respondent

Minister of Finance

Respondent

National Treasury Transversal Contracting Office

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether the Bid Evaluation Committee's consensus-seeking approach and differential treatment of bidders rendered the tender process procedurally unfair.
  2. 2 Whether the decision to award the tender to Lebone Consortium was constitutionally valid under section 217 of the Constitution.
  3. 3 Whether the failure to consider the opinion of independent senior counsel constituted a reviewable irregularity.

Ratio Decidendi

The Supreme Court of Appeal found that the Bid Evaluation Committee's consensus-seeking approach, which involved moderating only CTP JV's scores and not Lebone Consortium's, resulted in unequal treatment and procedural unfairness. This deviation from the prescribed implementation guide was not justified and compromised the constitutional requirements of fairness, equity, transparency, and competitiveness in public procurement under section 217 of the Constitution. The court held that the exclusion of CTP JV from further consideration was not objectively fair and that the decision to award the tender to Lebone Consortium was constitutionally invalid. While the opinion of independent senior...

Court Disposition

Appeal upheld; the decision to award the tender to Lebone Consortium declared constitutionally invalid; declaration of invalidity suspended until 31 March 2020; costs awarded to appellants.

Orders

  • The appeal succeeds with costs, including costs of two counsel.
  • The order of the court a quo is set aside and replaced with an order declaring the decision to award the tender to Lebone Consortium constitutionally invalid.