Hemipac Investments (Pty) Ltd v Independent Electoral Commission and Others (EL1219/16) [2017] ZAECELLC 14 (12 July 2017)

Hemipac Investments (Pty) Ltd v Independent Electoral Commission and Others (EL1219/16) [2017] ZAECELLC 14 (12 July 2017)

The court found that the applicant's bids were lawfully disqualified because they failed to comply with the mandatory requirements of the tender. The bid specifications clearly required a single, all-inclusive price for a 250KVA emergency power generator, with no room for post-submission negotiation or qualification. The applicant's covering letters introduced uncertainty and an invitation to negotiate generator costs after bid closure, which contravened the tender rules. The distinction drawn by the applicant between 'emergency' and 'back-up' generators was found to be contrived and unsupported by the tender documentation or common usage. The court held that the first respondent's...

Citation
[2017] ZAECELLC 14
Parties
Applicant: Hemipac Investments (Pty) Ltd; Respondent: Independent Electoral Commission; Respondent: Crane Crest Investments 71 (Pty) Ltd t/a Novate Property Investments; Respondent: Harbour Point Fuels (Pty) Ltd; Respondent: 69 Frere Road Trust; Respondent: Ballustrade Properties (Pty) Ltd; Respondent: Sthathu Funding (Pty) Ltd; Respondent: Finishing Touch Trading 260 (Pty) Ltd
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
12 July 2017
Case Number
EL1219/16
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs, including costs of two counsel and costs occasioned by the interdict application.
Judges
Mageza
Legal Topics
Public Procurement, Promotion of Administrative Justice Act, Bid Disqualification, Preferential Procurement Policy Framework Act, Procedural Fairness, Tender Specification Compliance
Administrative Law Commercial and Corporate Public Procurement Promotion of Administrative Justice Act Bid Disqualification Preferential Procurement Policy Framework Act Procedural Fairness Tender Specification Compliance

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Parties

Hemipac Investments (Pty) Ltd

Applicant

Independent Electoral Commission

Respondent

Crane Crest Investments 71 (Pty) Ltd t/a Novate Property Investments

Respondent

Harbour Point Fuels (Pty) Ltd

Respondent

69 Frere Road Trust

Respondent

Ballustrade Properties (Pty) Ltd

Respondent

Sthathu Funding (Pty) Ltd

Respondent

Finishing Touch Trading 260 (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicant's bids were lawfully disqualified by the first respondent during the tender process.
  2. 2 Whether the disqualification was rationally connected to the information before the decision-maker and complied with the requirements of PAJA.
  3. 3 Whether the tender process was procedurally fair and in accordance with the Preferential Procurement Policy Framework Act.

Ratio Decidendi

The court found that the applicant's bids were lawfully disqualified because they failed to comply with the mandatory requirements of the tender. The bid specifications clearly required a single, all-inclusive price for a 250KVA emergency power generator, with no room for post-submission negotiation or qualification. The applicant's covering letters introduced uncertainty and an invitation to negotiate generator costs after bid closure, which contravened the tender rules. The distinction drawn by the applicant between 'emergency' and 'back-up' generators was found to be contrived and unsupported by the tender documentation or common usage. The court held that the first respondent's...

Court Disposition

Application dismissed with costs, including costs of two counsel and costs occasioned by the interdict application.

Orders

  • The application is dismissed with costs.
  • Costs to include the costs of two counsel.