Altron TMT (Pty) Ltd v City of Tshwane Metropolitan Municipality and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | De Vos AJ |
| Judgment Date | 08 September 2023 |
| Citation | 2023 JDR 3530 (GP) |
| Docket Number | 23/075060 |
| Court | Gauteng Division, Pretoria |
De Vos AJ:
Introduction
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The Court must decide if a successful tenderer can object to the disclosure of portions of the Rule 53 record, on confidentiality grounds, in the context of a tender review.
The City awarded a tender to the second respondent for R 585 million. The second respondent’s bidding price was R 74 million. There is a R 510 million difference at play. The applicant, as unsuccessful tenderer, has launched a review of the award of the tender. It is as a matter of process entitled to a Rule 53 record, but has been denied the full record as the second respondent’s confidentiality claim.
The case engages section 34 of the Constitution. Without the record the applicant has to litigate in the dark. The record allows of a levelling the inequality of arms between the reviewer and the decision-maker. It serves the purpose of shining a light on the reasons for the decision. Without the record both the litigants and the Court are disadvantaged in their task to interrogate the decision. [1]
The case also engages section 217 (1) of the Constitution. Section 217(1) of the Constitution requires that awards must be made in accordance with a system that is fair, equitable, transparent, competitive and cost-effective. The Constitution requires that tender awards must be done in a transparent manner.
The second respondent claims that portions of the record contains trade secrets. The second respondent does not want its competitors to gain access
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to these trade secrets. It ranks the applicant as a competitor. There is little to gainsay that they are competitors. The second respondent’s position is that it has delineated what is confidential and what is not and has already disclosed the non-confidential documents.
The affidavits, in the confidentiality application before this Court, run to over 600 pages. The confidential papers, which the case turns on, themselves are 7 lever arch files. The bundle is in excess of 7 000 pages. The case was heard in the urgent Court on 18 August 2023. Argument required more than one day. The parties agreed to a holding order that would operate until submissions could be concluded on 1 September 2023. On 1 September 2023 this Court extended the operation of the interim order until the hand down of this judgment.
The interim order permitted the Court an opportunity to consider the matter whilst protecting the second respondent’s confidentiality claim in the interim. The proceedings were conducted in camera and the confidential documents provided to the Court only in hardcopy.
The case must be considered in the context of the tender and the review.
The tender
The tender concerns the operation and maintenance of the City’s Information and Communication Technology (“ICT”) corporate network equipment and the expansion of the existing ICT network. The successful bidder was to provide hardware, equipment and support services to ensure the reliable functioning and ensure City’s ICT services had sufficient capacity.
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The tender reaches into the data system, the telephone system and the entire ICT system for the City. The tender affects 12 000 data users and 14 000 voice users. These systems run in approximately 370 buildings and covers the area from Bronkhorstspruit to Hammanskraal, and from Midrand to the Carousel.
The services covered in the tender are integral to the functioning of the City. Those directly affected by the ICT network services include the Office of the Executive Mayor, the Office of the Speaker, the Office of the City manager, all political office bearers, the Chief Operating Officer, the Chief Financial Officer, the Group Heads, the Divisional Heads, the Directors, the Deputy Directors and all personnel reporting to the Deputy Director.
Inclusive in this, is the City’s emergency call centres. The ambulance, hospital, fire brigade and rescue departments all run on these systems. The tender also covers the call centres that deal with general municipal services such as domestic bins, electricity, bus services, sewerage potholes traffic fines, faulty traffic light, water leaks, meter readings, faulty street lights, water problems and billing issues. If these systems do not work, then the public cannot, for example, call a hospital or the fire brigade.
The systems underpin the acute and every day needs of those that engage with the City and runs the gamut from the Office of the Mayor to those starting out their careers within the City.
The applicant and second respondent responded to the invitation to bid. The City awarded the tender to the second respondent.
The review
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The applicant’s focus, is naturally on the R 510 difference between original bid price and the bid price as awarded. However, the applicant has also raised other questions in these proceedings. The applicant identifies that one of the mandatory conditions of tender is that the bidder had to hold two valid licenses from ICASA (Individual Electronic Communications Service License and an Individual Electronic Communications Network Service License). The applicant has subpoenaed ICASA for a list of license holders. ICASA’s response to the subpoena shows that there is no license registered which reflects the second respondent’s company number. The second respondent is listed as a license holder – but under a different company registration number. In other words there is a license which reflects the second respondent’s name, but when the registration number is investigated – it belongs to a different company.
In addition, the City stated in its bid document that it had invested heavily in the Alcatel-Lucent and Huawei range of products and equipment. To protect the City’s investment the successful bidder “must be able to maintain the current Alcatel Productions on the corporate network”. The tender documents stated that “any vendor must have the highest possible partnership with the Original Equipment Manufacturer of the proposed equipment”. Practically, the successful bidder cannot procure products, warranties, support services or software from Alcatel—Lucent or Huawai (being the Original Equipment Manufacturer OEMs) without a partnership agreement in place with these two.
The applicant has been provided with a letter from Pinnacle – who is the sole distributed of Alcatel-Lucent products - confirming that the second respondent
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was not an Alcatel-Lucent partner at the time when pricing for the Tshwane tender was provided. The applicant contends that this letter indicates that the second respondent was not an accredited partner of Alcatel-Lucent at the time of the bid, and it failed to satisfy a minimum mandatory condition of tender and it ought to be haven disqualified from the tender evaluation process.
After launching the review, the applicant awaited the filing of the Rule 53 record. The City did not provide the record in time. The applicant had to launch an urgent application to compel the production of the Rule 53 record. From that, first urgent application, it emerged that the delay was caused by the second respondent’s objection to the disclosure of certain parts of the record as they contain confidential information. In response to the second respondent’s classification...
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