Jorian Construction CC v Letsemeng Local Municipality and Others (1954/2017) [2017] ZAFSHC 216 (24 August 2017)

Jorian Construction CC v Letsemeng Local Municipality and Others (1954/2017) [2017] ZAFSHC 216 (24 August 2017)

The court found that the exclusion of the applicant's bid from further evaluation was irregular and reviewable under PAJA, as the bid was responsive and should have advanced to the next round. The first respondent was bound to the reasons initially supplied and could not supplement them ex post facto. The application of a predetermined price deviation as a risk analysis was held to be an objective criterion permissible under the Preferential Procurement Policy Framework Act, provided it is applied fairly and does not result in arbitrary exclusion. Past performance, in the circumstances, was not a justifiable ground for exclusion, as the applicant was not registered as a defaulter and no...

Citation
[2017] ZAFSHC 216
Parties
Applicant: Jorian Construction CC; Respondent: Letsemeng Local Municipality; Respondent: Makomoto Stone (Pty) Ltd; Respondent: Zalisile Msebenzi Civils
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 August 2017
Case Number
1954/2017
Procedural Posture
Review Application / Judgment After Hearing on the Merits
Outcome
Application succeeds to the extent that the award of the tender is reviewed and set aside; matter remitted for re-evaluation; costs awarded to applicant.
Judges
Rampai, Snellenburg
Legal Topics
Public Procurement, Preferential Procurement Policy Framework Act, Promotion of Administrative Justice Act, Objective Criteria in Tender Awards, Judicial Review of Administrative Action, Costs Order
Administrative Law Civil Procedure Commercial and Corporate Public Procurement Preferential Procurement Policy Framework Act Promotion of Administrative Justice Act Objective Criteria in Tender Awards Judicial Review of Administrative Action +1 more

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Parties

Jorian Construction CC

Applicant

Letsemeng Local Municipality

Respondent

Makomoto Stone (Pty) Ltd

Respondent

Zalisile Msebenzi Civils

Respondent

Procedural Posture

Review Application / Judgment After Hearing on the Merits

Legal Issues

  1. 1 Whether the exclusion of the applicant's bid from further evaluation in the tender process was lawful and procedurally fair.
  2. 2 Whether the first respondent's decision to award the contract to the third respondent was justified by objective criteria.
  3. 3 Whether the application of a predetermined price deviation as a risk analysis constitutes a lawful objective criterion under the Preferential Procurement Policy Framework Act.

Ratio Decidendi

The court found that the exclusion of the applicant's bid from further evaluation was irregular and reviewable under PAJA, as the bid was responsive and should have advanced to the next round. The first respondent was bound to the reasons initially supplied and could not supplement them ex post facto. The application of a predetermined price deviation as a risk analysis was held to be an objective criterion permissible under the Preferential Procurement Policy Framework Act, provided it is applied fairly and does not result in arbitrary exclusion. Past performance, in the circumstances, was not a justifiable ground for exclusion, as the applicant was not registered as a defaulter and no...

Court Disposition

Application succeeds to the extent that the award of the tender is reviewed and set aside; matter remitted for re-evaluation; costs awarded to applicant.

Orders

  • The first respondent's decision to exclude the applicant's bid from further evaluation is reviewed and set aside.
  • The first respondent's decision to award the tender to the third respondent is reviewed and set aside.