KET Civils CC and Others v MEC: Department of Roads and Public Works, Northern Cape Province and Others (2124/2018) [2020] ZANCHC 18 (26 March 2020)

KET Civils CC and Others v MEC: Department of Roads and Public Works, Northern Cape Province and Others (2124/2018) [2020] ZANCHC 18 (26 March 2020)

The court found that the Department's tender process was flawed, unfair, and unconstitutional. The disqualification of the KRA JV and other bidders was not consistently applied, and the Department failed to adhere to the requirements of the tender documents, the PPPFA, and the CIDB Act. Down Touch's bid contained arithmetic errors and its nominated subcontractor did not meet the required CIDB grading, yet the Department awarded the tender to Down Touch while disqualifying other bidders for similar or lesser deficiencies. The Department's conduct was irrational and discriminatory, amounting to grounds for review under PAJA. The court held that the applicants established a cause of action...

Citation
[2020] ZANCHC 18
Parties
Applicant: KET Civils CC; Applicant: Razzmatazz Civil (Pty) Ltd; Applicant: Asatico Civil and Construction (Pty) Ltd; Respondent: MEC: Department of Roads and Public Works, Northern Cape Province; Respondent: Down Touch Investments (Pty) Ltd; Respondent: Department of Roads and Public Works, Northern Cape Province; Respondent: Head of Department of Roads and Public Works, Northern Cape Province
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
26 March 2020
Case Number
2124/2018
Procedural Posture
Review Application / Judgment on Part B (review) After Urgent Application Struck Off for Lack of Urgency
Outcome
Application for review granted; Department's decision to award the tender and the contract with Down Touch set aside; fresh tender process ordered; costs awarded on a punitive scale.
Judges
Mamosebo, Chwaro
Legal Topics
Public Procurement, Preferential Procurement Policy Framework Act, Promotion of Administrative Justice Act, Tender Irregularity, Judicial Review, Costs Punitive Scale
Administrative Law Civil Procedure Commercial and Corporate Public Procurement Preferential Procurement Policy Framework Act Promotion of Administrative Justice Act Tender Irregularity Judicial Review +1 more

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Parties

KET Civils CC

Applicant

Razzmatazz Civil (Pty) Ltd

Applicant

Asatico Civil and Construction (Pty) Ltd

Applicant

MEC: Department of Roads and Public Works, Northern Cape Province

Respondent

Down Touch Investments (Pty) Ltd

Respondent

Department of Roads and Public Works, Northern Cape Province

Respondent

Head of Department of Roads and Public Works, Northern Cape Province

Respondent

Procedural Posture

Review Application / Judgment on Part B (review) After Urgent Application Struck Off for Lack of Urgency

Legal Issues

  1. 1 Whether the Department's tender process for Road MR938 was fair, equitable, transparent, competitive and cost-effective.
  2. 2 Whether the disqualification of the KRA JV and other bidders was lawful and consistent with the tender rules and applicable legislation.
  3. 3 Whether the award of the tender to Down Touch Investments (Pty) Ltd was reasonable and rational given the identified irregularities.

Ratio Decidendi

The court found that the Department's tender process was flawed, unfair, and unconstitutional. The disqualification of the KRA JV and other bidders was not consistently applied, and the Department failed to adhere to the requirements of the tender documents, the PPPFA, and the CIDB Act. Down Touch's bid contained arithmetic errors and its nominated subcontractor did not meet the required CIDB grading, yet the Department awarded the tender to Down Touch while disqualifying other bidders for similar or lesser deficiencies. The Department's conduct was irrational and discriminatory, amounting to grounds for review under PAJA. The court held that the applicants established a cause of action...

Court Disposition

Application for review granted; Department's decision to award the tender and the contract with Down Touch set aside; fresh tender process ordered; costs awarded on a punitive scale.

Orders

  • The Department's decision to award Tender Number DRPW039/2017 for the rehabilitation of Road MR938 between MR884 and TRS/5 to Down Touch Investments (Pty) Ltd, and the contract concluded between the Department and Down Touch pursuant thereto are reviewed and set aside.
  • The Department is directed to commence a fresh tender process in respect of Tender DRPW039/2017 for the rehabilitation of Road MR938 between MR884 and TRS/5.