Opposed
Court Application
KAMOCHA
J: The
applicant in this matter is seeking for an order of this court in the
following terms:
“It
is ordered that:
1.
The decision by the respondent to disqualify the applicant as the
successful tenderer be and is hereby set aside.
2.
The respondent be and is hereby grants (sic) the applicant the
contract for the parking management system for the City of Bulawayo
within fourteen (14) days of service of this order, or such other
time as the court may deem fit.
3.
The respondent pays costs of suit on a higher scale of the order
sought if it opposes this application.”
The
facts giving rise to this matter may be summerised as follows:
On
7 October, 2011 City of Bulawayo “respondent” flighted a tender
for the Parking Management System for itself for a 5 year period
scheduled to begin in January 2012.
In
its request for proposal the respondent stipulated that tenders would
be evaluated according to Bulawayo Municipal Procurement policy and
any regulations promulgated under that policy would apply in the
adjudication and awarding of the tender. It was also stipulated that
a compulsory tender briefing for prospective tenderers would be held
on Tuesday 18 October, 2011 at 1000 hours.
On
18 October, 2011 at the appointed time, the compulsory tender
briefing was held whereat prospective tenderers were advised that:
“While
Council has every intention to enter in a memorandum of agreement
with a proposer as a result of this RFP (request for proposal), it
reserves the right to eject, at any time and for any reason any or
all proposals it received as a result of this RFP.”
Four
companies namely Megalithic Marketing, Greywold Trading, Easi Park
and Foracom procured tender documents.
Three
of them lodged their tenders which were evaluated by the respondent's
inter-departmental committee and scored each tender using a specific
criterion.
That
was done in order to assist the respondent's procurement board in
adjudicating the tenders.
The
Director of Engineering Services subsequently prepared a report which
was in summary of the deliberations of that inter departmental
committee (also sometime referred to as an adjudicating committee).
That particular report recommended that the bid of Megalithic
marketing (Pvt) Ltd – the applicant be acceded to in the following
terms:
“210
Recommendations
It
is recommended that: the proposal from Megalithic Marketing (Pvt) Ltd
(the bidder with the highest score) be acceded to.”
The
tenders and the report of the Director of Engineering Services were
submitted to the respondent's procurement board, which was supposed
to deliberate on them, on 24 January, 2012.
The
procurement board is a creature of statutes created by section 210 of
the Urban Councils Act [Chapter 29:15] – “the Act” with the
responsibility to arrange tenders in terms of section 211 and for
making recommendations to the Council in regard to the acceptance of
tenders and the procurement of goods, materials and services.
The
procurement board recommended to Council as follows:
“Resolved
to recommend:
That
the recommendation of the Director of Engineering Services be not
acceded to, instead the contract be re-tendered three (3) months
after Council's decision i.e if the recommendation of the committee
is adopted.”
The
respondent accepted the above recommendation on 1 February 2012 save
that it reduced the re-tendering period from 3 months to 1 month and
resolved thus:
“It
was accordingly RESOLVED:
That
the recommendation of the Municipal Procurement Board be varied and
the contract be re-tendered within one month, instead of three (3)
months.”
When
the applicant got to hear about the above decision of the respondent,
it lodged a complaint against it on 14 February 2012 in a letter
addressed to the respondent's Town Clerk which it copied to the
Mayor, all councilors, director of finance, chamber secretary, the
director of housing and community services and council chairpersons –
various committees.
Applicant
sought a re-visit of the above resolution by the respondent.
The
respondent acceded to the request of the applicant to re-visit its
decisions.
Pursuant
to that, the matter was remitted to the respondent's procurement
board for re-consideration in the light of the applicant's
representations.
The
matter was deliberated upon by the procurement board on 27 and 28
March 2012 when the board finally resolved on the second day and
recorded as follows:
“In
view of this it was RESOLVED AND RECOMMENDED:
That
the Committee re-affirm its previous decisions (24 January 2012) i.e.
'that the recommendation of the director of engineering services be
not acceded to instead the contract be re-tendered three (3) months
after council's decision;' i.e. the recommendation of the
committee is adopted.”
In
terms of section 211 of the Act, the matter was then taken to the
respondent's council for deliberation with the above recommendation
of the procurement board.
On
4 April, 2012 council considered the matter and after debate resolved
that:
“Accordingly
it was RESOLVED:
That
the recommendation of the Municipality Procurement Board as submitted
be adopted.”
This
court was called upon to determine whether the decision to order that
the contract be re-tendered within one month was reviewable. If it
is, what are the grounds for such review and what are the remedies
available to the applicant?
While
the applicant contended on the one hand that the decision was
irregular in the light of the fact that neither the Procurement Board
nor the council itself complied with the provisions of section 211 of
the Act and the decision was, therefore, reviewable.
The
respondent on the other hand held the view that its decision to have
the contract re-tendered was proper and was ipso
facto
not reviewable.
It
was its contention that it had decided to re-tender the contract
because it was its prerogative to do so. When dealing with its
decisions of 24 January 2012 and 4 April 2012 respondent reiterated
that there was nothing wrong with those decisions as councilors
exercised their unfetted discretion which could not be impugned.
What
admits of no doubt is that as a creature of statute the board ought
to always function within the confines of the law.
Section
211(5) of the Act provides as follows:
“(5)
In the case of a municipal council, the municipal procurement board
shall without delay, consider all tenders opened in terms of
subsection (4) and submit them, together with the board's
recommendations, to the council for its consideration.”
On
receipt of the submitted tenders council proceeds in terms of section
211(6) and it shall accept wholly or partly the tender which in all
the circumstances appears to it to be most advantageous:
“Provided
that:
(i)
Nothing contained in this subsection shall prevent the council from
rejecting all tenders.”
The
duty that is imposed upon the municipal procurement board is to
consider all tenders opened without any culpable delay. After it has
considered the tenders and has to finally make recommendations such
recommendations together with the tenders are forwarded to council
for consideration.
What
sticks out like a sore thumb in this matter is that the municipal
procurement board did not consider the merits of the tenders at all.
A
reading of the minutes at pages 46 to 47 of the application reveals
that the tenders were not considered at any stage. The municipal
procurement board did not even debate the merits of the tenders
before it.
A
subsequent meeting was held by the board on 27 March 2012 whose
minutes are from pages 72 to 78 of the application. Similarly, at no
stage were the merits of the tenders ever considered. The board
occupied its self debating other issues which were not germane to
what it was supposed to do in terms of section 210 of the Act.
The
board did not consider and debate the merits of the tenders as
required by section 211(5) and yet all the same arrived at the
decision to re-tender. It went on to make the recommendation to the
council to re-tender.
Council
fell into the same error.
It
also failed to consider the tender submitted to it on the merits. It
opted for the easy way out and adopted the recommendation to
re-tender.
A
look at the council's minutes at page 79 of the application also
reveals that there was no consideration whatsoever of the merits of
the tenders. Council simply endorsed the recommendations of the board
without applying its mind to the merits of the tenders before it.
Both
the municipal procurement board and the council failed to do what
they were supposed to do.
In
my view the decision to re-tender could only have been made by
council after completing the whole tender process and not before. The
board and council decided to abort the whole tender process. They
should have carried out the process to the end and then if they
wanted they could have rejected all the tenders in terms of the
proviso
to
section 211(6) of the Act.
The
respondent's decision was unfair when regard is had to the fact
that respondent all the way conceded that applicant did no wrong but
said it acted the way it did because it had administrative challenges
which were due to no fault of the applicant.
Respondent
was unable to correct its administrative challenges for 15 months.
No
acceptable reason or explanation was proffered by council. Instead it
sought to abort the whole tender process when no satisfactory and
adequate excuse for terminating the tender process existed.
Further,
the applicant was the highest bidder in the tender process. According
to clause 19 of the Request for Proposal document; “the first
ranked bidder shall be selected for negotiation”.
Council
was, therefore, obliged, in terms of the contract dictated by itself,
to engage the applicant in negotiations with a view to completing the
tender contract as soon as the applicant was declared first ranked
bidder.
Applicant
was denied the opportunity to enter into negotiations with council.
Council
this time failed to act in terms of the contract it dictated and
provided no reason whatsoever for doing so.
The
decision seems to have been made capriciously and unfairly.
In
the light of the above findings it admits of no doubt that the
respondent's decision to re-tender is reviewable. In the result,
the decision of the council to order a re-tender is hereby set aside.
City
of Bulawayo is hereby ordered to carry out the tender process to
completion and to carry on with the processes that were still to be
completed to their final conclusions.
Cheda
& Partners,
applicant's legal practitioners
Coghlan
& Welsh,
respondent's legal practitioners
