Professional Security CC t/a Prosec v Robben Island Museum and Others (20559/14) [2016] ZAWCHC 200 (19 August 2016)

Professional Security CC t/a Prosec v Robben Island Museum and Others (20559/14) [2016] ZAWCHC 200 (19 August 2016)

The court found that the bid specifications regarding minimum pricing and overheads were vague and ambiguous, undermining the fairness and transparency required by procurement law and the Constitution. This vagueness constituted a material irregularity, justifying the setting aside of the tender award. The court held that the appropriate remedy was to declare the award invalid and remit the matter for a fresh tender process with clear specifications, rather than substituting its own decision for that of the Bid Adjudication Committee. The failure to read out tender prices at the opening did not amount to a material irregularity affecting the outcome, as the applicant could obtain the...

Citation
[2016] ZAWCHC 200
Parties
Applicant: Professional Security CC t/a Prosec; Respondent: Robben Island Museum; Respondent: Minister of Arts and Culture; Respondent: Khuselani Security and Risk Management (Pty) Ltd; Respondent: Enforce Security Services (Pty) Ltd; Respondent: Mjayeli Security (Pty) Ltd; Respondent: Mvula Quality Protection (Africa) (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
19 August 2016
Case Number
20559/14
Procedural Posture
Review Application / Judgment
Outcome
Application granted in part; the award of the tender to the third respondent is declared invalid and set aside. Remittal ordered for a fresh tender process. Costs apportioned as per the judgment.
Judges
Erasmus
Legal Topics
Public Procurement, Tender Irregularity, Promotion of Administrative Justice Act, Bid Specification Vagueness, Remedy Remittal, Costs Award
Administrative Law Civil Procedure Public Procurement Tender Irregularity Promotion of Administrative Justice Act Bid Specification Vagueness Remedy Remittal Costs Award

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Parties

Professional Security CC t/a Prosec

Applicant

Robben Island Museum

Respondent

Minister of Arts and Culture

Respondent

Khuselani Security and Risk Management (Pty) Ltd

Respondent

Enforce Security Services (Pty) Ltd

Respondent

Mjayeli Security (Pty) Ltd

Respondent

Mvula Quality Protection (Africa) (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the first respondent's bid specifications were so vague as to compromise the fairness and lawfulness of the tender process.
  2. 2 Whether the third respondent's bid should have been disqualified for underpricing below the prescribed minimum in the bid specifications.
  3. 3 Whether the failure to read out tender prices at the opening of the bid constituted a material irregularity.

Ratio Decidendi

The court found that the bid specifications regarding minimum pricing and overheads were vague and ambiguous, undermining the fairness and transparency required by procurement law and the Constitution. This vagueness constituted a material irregularity, justifying the setting aside of the tender award. The court held that the appropriate remedy was to declare the award invalid and remit the matter for a fresh tender process with clear specifications, rather than substituting its own decision for that of the Bid Adjudication Committee. The failure to read out tender prices at the opening did not amount to a material irregularity affecting the outcome, as the applicant could obtain the...

Court Disposition

Application granted in part; the award of the tender to the third respondent is declared invalid and set aside. Remittal ordered for a fresh tender process. Costs apportioned as per the judgment.

Orders

  • The first respondent's decision to award Tender RIM EST-04/2013/14 to the third respondent is declared invalid and any contract concluded thereto is set aside.
  • Applicant is ordered to pay the costs of the first respondent for the application before Baartman, J. The third respondent to pay its own costs.