Siemens (Pty) Ltd v Eskom Holdings (SOC) Ltd and Another (29841/2019) [2021] ZAGPJHC 128 (16 August 2021)

Siemens (Pty) Ltd v Eskom Holdings (SOC) Ltd and Another (29841/2019) [2021] ZAGPJHC 128 (16 August 2021)

Eskom's invitation to tender for the Camden Power Station contract specified three prequalification criteria, expressed disjunctively, meaning that a tenderer needed to meet only one to qualify. Siemens met the criterion of committing to subcontract 30% of the work to qualifying QSEs and EMEs, as confirmed by Eskom's own evaluation report and admitted in Eskom's answering affidavit. Eskom's decision to disqualify Siemens for not meeting all criteria was contrary to the terms of the invitation and lacked a rational connection to its stated purpose, violating section 6(2)(b) and 6(2)(f)(ii)(aa) of PAJA. The irregularity was material, affecting the lawfulness of the tender process and the...

Citation
[2021] ZAGPJHC 128
Parties
Applicant: Siemens (Pty) Ltd; Respondent: Eskom Holdings (SOC) Ltd; Respondent: Senta Square (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 August 2021
Case Number
29841/2019
Procedural Posture
Review Application / Judgment on Review and Remedy Directions
Outcome
The award of the tender to Senta Square was declared unlawful, but the declaration is suspended pending determination of a just and equitable remedy. The parties are directed to provide further factual information and submissions, and the matter is set down for a further hearing. Eskom is ordered to pay Siemens'...
Judges
S D J Wilson
Legal Topics
Public Procurement, Preferential Procurement Policy Framework Act, Promotion of Administrative Justice Act, Tender Irregularity, B Bbee Prequalification, Remedy Under Paja
Administrative Law Commercial and Corporate Public Procurement Preferential Procurement Policy Framework Act Promotion of Administrative Justice Act Tender Irregularity B Bbee Prequalification Remedy Under Paja

Case Brief

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Parties

Siemens (Pty) Ltd

Applicant

Eskom Holdings (SOC) Ltd

Respondent

Senta Square (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review and Remedy Directions

Legal Issues

  1. 1 Whether Eskom lawfully disqualified Siemens from the second tender process for control and instrumentation maintenance at Camden Power Station.
  2. 2 Whether the prequalification criteria in the tender were correctly interpreted and applied by Eskom.
  3. 3 Whether Siemens met at least one of the prequalification criteria and was thus improperly excluded.

Ratio Decidendi

Eskom's invitation to tender for the Camden Power Station contract specified three prequalification criteria, expressed disjunctively, meaning that a tenderer needed to meet only one to qualify. Siemens met the criterion of committing to subcontract 30% of the work to qualifying QSEs and EMEs, as confirmed by Eskom's own evaluation report and admitted in Eskom's answering affidavit. Eskom's decision to disqualify Siemens for not meeting all criteria was contrary to the terms of the invitation and lacked a rational connection to its stated purpose, violating section 6(2)(b) and 6(2)(f)(ii)(aa) of PAJA. The irregularity was material, affecting the lawfulness of the tender process and the...

Court Disposition

The award of the tender to Senta Square was declared unlawful, but the declaration is suspended pending determination of a just and equitable remedy. The parties are directed to provide further factual information and submissions, and the matter is set down for a further hearing. Eskom is ordered to pay Siemens'...

Orders

  • It is declared that Eskom's award of the tender for control and instrumentation maintenance at Camden Power Station between 1 March 2019 and 28 February 2022 to Senta Square was unlawful.
  • The declaration of unlawfulness is suspended pending determination of a just and equitable remedy.