Cesa will use court to review tenders

Consulting Engineers SA (Cesa) has warned it will apply for an urgent high court interdict to review tender awards and prevent projects proceeding if it received information about serious and blatant cases of non-compliance with mandatory procurement processes. The creation of a “war chest”, which will fund legal challenges against procurement non-compliance, has already been approved by Cesa’s board. Wally Mayne, the contractual affairs manager at Cesa, said on Friday that it still had to get the money for its “war chest”, which would be added to the subscriptions of its members, but that would happen within a month.

Mayne said Cesa would thereafter be in a position to take on its first case if and when one of its members reported a serious case. He stressed that the cases Cesa would take up and challenge would not be frivolous. “We want a good case. We are not gunning for government and also need to make sure our own house is in order,” he said. Mayne said legal advice obtained by Cesa was that it should apply for an urgent high court interdict to stop the award of a tender and the project proceeding. He said this meant that when the tender was eventually reviewed and set aside, the tender could be re-awarded.

Cesa referred last week to a case where an unnamed district municipality was involved in the awarding of two tenders to a firm that “submitted the 17th and 18th highest-priced bids” and disqualified about 15 Cesa member firms on the grounds that they did not meet the quality requirements. “When the municipal manager eventually responded to Cesa’s correspondence in this regard, he was arrogant, unrepentant and dared Cesa to institute a legal challenge,” it said. Mayne declined to identify the district municipality and also indicated that Cesa would not be challenging this tender award because the project had already progressed too far.

He said by the time it was reviewed by a court nothing could be done because the project was finished and successful bidders had already got their money. Cesa said it had explored and employed many avenues to contest issues of procurement non-compliance, with varying degrees of success. It initially corresponded with public sector clients, highlighting instances of non-compliance and requesting the implementation of remedial measures to comply with the Construction Industry Development Board Act and allied legislation dealing with procurement in the construction sector.

“Taking a client to court is a last resort after all other avenues have been explored and exhausted,” it said. Cesa president Naren Bhojaram warned last week that corruption was paralysing the country and eating away the moral fibre of society. “While we all acknowledge that corruption is a huge stumbling block to service delivery, there seems not to be a political will to eradicate the scourge,” Bhojaram said. He stressed that President Jacob Zuma could not be blamed for corruption in the country because his job was to create a platform for business to operate in an ethical, responsible and sustainable way and for him and his government to lead by example.

“We cannot escape our collective responsibility. Therefore, let us deal with it.” Bhojaram said the world perception of South Africa in terms of business integrity and corruption was deteriorating at an alarming rate and the immediate but unfortunate consequence of this was the imminent driving away of foreign investors while it was also demoralising to the average person trying to earn an honest living.