City wants big contract set aside

Despite alleged irregularities in awarding the tender for the decommissioning of Athlone Power Station to Aurecon, the company would have won the contract regardless as it was the only responsive tender, the Western Cape High Court heard yesterday. In its responding papers, Aurecon has submitted that the city’s officials were solely responsible for the alleged irregularities in the tender process. The city is asking the court to set aside its decision to award the R9.7 million (excluding VAT) tender to Aurecon. This comes after the ANC last year cried foul over the tender process, saying Aurecon had an unfair advantage over other bidders as it had done a pre-feasibility study for the scope of work for the project prior to the decommissioning tender being awarded. The city initiated an investigation which was done by Ernst and Young.

The city’s advocate, Ismail Jamie SC, said prior to the investigation’s report, the city did not have any indication of irregularities. The city had to ensure its processes were fair and transparent, and that in this case it hadn’t been. This left the city with no choice but to ask the court to set aside its own decision to award the contract to Aurecon. The city is arguing that Aurecon should not have won the tender because of a number of transgressions in the tender awarding process which resulted in the company being afforded an unfair advantage over other bidders. Aurecon denies that it had an unfair advantage as no other bidders complained. In Aurecon’s court documents, it stated it was apparent from two affidavits deposed to by the chairman of the bid adjudication committee that the committee would have awarded the tender to Aurecon even if they were aware of alleged irregularities committed by city officials, because Aurecon’s tender was the only responsive one.

Tenders were analysed and considered by the bid evaluation committee which found all tenders, except Aurecon’s, non-responsive as other bidders failed to comply with eligibility criteria related to “key personnel” for the project. The committee then recommended that Aurecon’s tender, the only responsive one, be accepted. Aurecon is asking that the city’s application to set aside the decision be dismissed with costs. In turn, they are asking the court to order that they were not precluded from bidding for the tender. Aurecon also submits that if the court is of the view that the irregularities are reviewable, that they are not responsible for the alleged irregularities committed by the bid evaluation committee.

Aurecon further stated that it would be unfair to penalise them for such irregularities because no other bids were eligible for acceptance. It would not be in the city’s best interest to have the decision set aside as this would mean that the city would have to go out to tender again for the project, which will result in further delays. The Athlone towers were demolished in August 2010 and the tender for decommissioning awarded in October 2011. The city would answer any questions on their plans for the site. Mayco member for finance Ian Neilson said the city did not want to pre-empt the court’s judgment and would respond in detail once it received the judgment. On site, the rubble has been cleared and the area levelled. Judge James Yekiso reserved judgment.