Fountain Civil Engineering (Pty) Ltd v Mhlathuse Water and Others (10138/04) [2004] ZAKZHC 14 (24 January 2004)

Fountain Civil Engineering (Pty) Ltd v Mhlathuse Water and Others (10138/04) [2004] ZAKZHC 14 (24 January 2004)

The court found that the applicant failed to complete the required contract participation goal calculations as stipulated in the tender documents. The instructions to tenderers made it clear that failure to complete and sign all required forms could render a tender non-responsive and subject to rejection. The Preferential Procurement Policy Framework Act and the Constitution require strict compliance with prescribed procedures to ensure fairness and transparency in public procurement. The applicant's omission constituted a material deviation from the tender requirements, and the first respondent was justified in disqualifying the tender. The court held that the procurement process was...

Citation
[2004] ZAKZHC 14
Parties
Applicant: Fountain Civil Engineering (Pty) Ltd; Respondent: Mhlathuze Water; Respondent: Murray & Roberts Construction (Pty) Ltd; Respondent: Makhubu Civil
Court
High Courts - Kwazulu Natal
Jurisdiction
South Africa
Judgment Date
24 January 2004
Case Number
10138/04
Procedural Posture
Urgent Application / Application for Review and Urgent Relief
Outcome
Application dismissed; the tender award to the second and third respondents stands.
Judges
Hugo
Legal Topics
Public Procurement, Review of Tender Award, Preferential Procurement Policy Framework Act, Constitutional Fairness, Acceptable Tender Definition
Administrative Law Civil Procedure Public Procurement Review of Tender Award Preferential Procurement Policy Framework Act Constitutional Fairness Acceptable Tender Definition

Case Brief

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Parties

Fountain Civil Engineering (Pty) Ltd

Applicant

Mhlathuze Water

Respondent

Murray & Roberts Construction (Pty) Ltd

Respondent

Makhubu Civil

Respondent

Procedural Posture

Urgent Application / Application for Review and Urgent Relief

Legal Issues

  1. 1 Whether the applicant's tender was lawfully disqualified for failing to complete the tendered goal calculations.
  2. 2 Whether the first respondent complied with the requirements of the Preferential Procurement Policy Framework Act and the Constitution in its tender process.
  3. 3 Whether the applicant is entitled to have the tender award set aside and be appointed as contractor.

Ratio Decidendi

The court found that the applicant failed to complete the required contract participation goal calculations as stipulated in the tender documents. The instructions to tenderers made it clear that failure to complete and sign all required forms could render a tender non-responsive and subject to rejection. The Preferential Procurement Policy Framework Act and the Constitution require strict compliance with prescribed procedures to ensure fairness and transparency in public procurement. The applicant's omission constituted a material deviation from the tender requirements, and the first respondent was justified in disqualifying the tender. The court held that the procurement process was...

Court Disposition

Application dismissed; the tender award to the second and third respondents stands.

Orders

  • The application is dismissed.
  • The applicant is not entitled to be appointed as contractor.