Tshwane’s bid to appeal against ruling setting aside its fleet management contract fails

The Gauteng High Court, Pretoria, has dismissed the City of Tshwane’s legal bid for leave to appeal against a ruling setting aside its multimillion-rand fleet management contract.

The City’s bid was made afer a March judgment that nullified the awarding of a R4 billion contract, known as SSO4. The contract, which focused on the corporate hire of general construction vehicles, yellow plant equipment, refuse removal vehicles, specialised equipment and machines for the City, was advertised in March last year and awarded in August.

The awarding was followed by a court challenge lodged by a company known as JL Excavators (Pty) Ltd, which claimed the municipality flouted tender procurement regulations. Judge Margaret Victor ruled in favour of the company, indicating the order was suspended until June 30 to allow the new tender process to be concluded.

“Until June 30, 2022, the first respondent shall submit a report every 20 days recording in meaningful detail the progress of the steps taken in the tender process,” said the ruling. Yesterday, Tshwane chief of staff Jordan Griffiths told the Pretoria News that the City was still taking legal advice on the matter. He said the court ruling critiqued the tender process and did not make any mention of corruption.

In dismissing the application, Judge Victor reiterated that her judgment found that there were several serious irregularities in the awarding of the contracts. “These irregularities go to the heart of the requirement that a tender must be awarded in accordance with a system which Section 217 of the Constitution provides is fair, equitable, transparent, competitive and cost effective. I find that another court will not come to a different conclusion,” she said.

The City’s applications for leave to appeal in both were dismissed with costs. Judge Victor said: “In relation to the extension of the bid evaluation period I found that the right to refuse or accept an extension cannot accrue after the lapse of the validity period.

"If that were so this would mean the City could unilaterally vary, contradict or add to the terms of the bid. The letter requesting the extension provides for a response time of seven days after the tender has lapsed. This amounts to a variation of the tender specification. The variation does not end there. It provides for what happens in a case of non-response. In such an event the letter states that the tender will not be considered.”

She said the tender process had been designed to ensure a fair process, which “cannot be adjusted or changed midstream”. “Once the bid evaluation time has lapsed there is nothing to extend. This includes the various phases of assessment. In this case even after the lapse of the bid evaluation period the mandatory phase of the procurement process continued.

“The functionality phase relating to the documentation of the vehicles and the financing of the vehicles continued. All that should have been completed before the award of the tender,” she said. In December 2020, the awarding of the same contract was stopped by the City, citing possible collusion involving officials and contract bidders after the bidding process was flagged by a Nexus Forensic Services report.

At the time, the City announced that at least 71 public servants were found to have either direct or indirect conflicts of interest in the bidding process. The report also noted that at least 35 bidding entities were found in the wrong for sharing directorships and failing to disclose their status in the bidding documents, which smacked of collusive practice.