Ndodana Consulting Engineers (Pty) Ltd and Others v South African National Roads Agency SOC Limited and Others (B3733/23) [2025] ZAGPPHC 191 (27 February 2025)

Ndodana Consulting Engineers (Pty) Ltd and Others v South African National Roads Agency SOC Limited and Others (B3733/23) [2025] ZAGPPHC 191 (27 February 2025)

The court found that the Bid Evaluation Committee was not properly constituted, as a member whose appointment had expired participated as a voting member in the evaluation process. This procedural defect alone rendered the decisions to declare the applicants' bids non-responsive and to award the tenders to the second to fourth respondents invalid. Furthermore, SANRAL failed to provide adequate reasons or a factual basis for its conclusion that the applicants' pricing was unbalanced or posed a risk. The court held that SANRAL's interpretation of tender clause 2.1.10 was incorrect and that the administrative process lacked transparency, proper consideration of the applicants' submissions,...

Citation
[2025] ZAGPPHC 191
Parties
Applicant: Ndodana Consulting Engineers (Pty) Ltd; Applicant: Oarona Consulting and Engineering (Pty) Ltd; Applicant: Ndodana-Oarona Joint Venture; Respondent: South African National Roads Agency SOC Limited; Respondent: Ingerop South Africa (Pty) Ltd; Respondent: Horizon Consulting Engineers (Pty) Ltd; Respondent: The Ingerop-Horizon Joint Venture
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 February 2025
Case Number
B3733/23
Procedural Posture
Review Application / Final Judgment on Review
Outcome
The applicants' review succeeded. The decisions to declare their tenders non-responsive and to award the contracts to the second to fourth respondents were reviewed and set aside. The tenders are remitted to SANRAL to recommence the process. Costs are awarded against SANRAL on an attorney and client scale, including...
Judges
E van der Schyff
Legal Topics
Public Procurement, Bid Evaluation Committee Composition, Preferential Procurement Policy Framework Act, Audi Alteram Partem, Unbalanced Tender Pricing, Review of Administrative Action
Administrative Law Civil Procedure Commercial and Corporate Public Procurement Bid Evaluation Committee Composition Preferential Procurement Policy Framework Act Audi Alteram Partem Unbalanced Tender Pricing +1 more

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Parties

Ndodana Consulting Engineers (Pty) Ltd

Applicant

Oarona Consulting and Engineering (Pty) Ltd

Applicant

Ndodana-Oarona Joint Venture

Applicant

South African National Roads Agency SOC Limited

Respondent

Ingerop South Africa (Pty) Ltd

Respondent

Horizon Consulting Engineers (Pty) Ltd

Respondent

The Ingerop-Horizon Joint Venture

Respondent

Procedural Posture

Review Application / Final Judgment on Review

Legal Issues

  1. 1 Whether the Bid Evaluation Committee (BEC) was properly constituted when evaluating the tenders.
  2. 2 Whether SANRAL's decision to declare the applicants' bids non-responsive was lawful, reasonable, and procedurally fair.
  3. 3 Whether SANRAL provided adequate reasons and followed fair procedure in disqualifying the applicants' tenders.

Ratio Decidendi

The court found that the Bid Evaluation Committee was not properly constituted, as a member whose appointment had expired participated as a voting member in the evaluation process. This procedural defect alone rendered the decisions to declare the applicants' bids non-responsive and to award the tenders to the second to fourth respondents invalid. Furthermore, SANRAL failed to provide adequate reasons or a factual basis for its conclusion that the applicants' pricing was unbalanced or posed a risk. The court held that SANRAL's interpretation of tender clause 2.1.10 was incorrect and that the administrative process lacked transparency, proper consideration of the applicants' submissions,...

Court Disposition

The applicants' review succeeded. The decisions to declare their tenders non-responsive and to award the contracts to the second to fourth respondents were reviewed and set aside. The tenders are remitted to SANRAL to recommence the process. Costs are awarded against SANRAL on an attorney and client scale, including...

Orders

  • The first respondent's decisions to declare the applicants' tenders for the specified contracts non-responsive are reviewed and set aside.
  • The first respondent's decisions to award the tenders to the second to fourth respondents are reviewed and set aside.