Avenge (Africa) Limited v Dube Transport (Association Incorporated Under Section 21)

• Jurisdiction: South Africa
• Judge: Ntshangase J
• Judgment Date: 26 September 2008
• Docket Number: 1482/2007
• Court: Natal Provincial Division
• Hearing Date: 25 June 2008
• Citation: 2008 JDR 1356 (N)

Ntshangase J:

[1]

This is an interlocutory application to compel the production of certain documents in review proceedings instituted by the applicants.

[2]

The applicants which comprise the INDIZA GROUP bade for construction and maintenance of the King Shaka International airport. So did the seventh respondent whose members are the fourth, fifth and sixth respondents.

[3]

The first respondent conceptualised the project comprising the construction of the King Shaka International Airport coupled with a trade zone, support zone and an agricultural zone and other ancillary developments ["the project"]. The second respondent as sole shareholder in the first respondent established and capitalized the first respondent as a trading entity to undertake the development of the project. The first respondent instituted the bidding process for the project.

[4]

The third respondent was to undertake the development of the airport and was to be the party to contract via a single Engineering Procurement and Construction [EPC] contract designated by the first respondent as a design and construction contract, and a separate maintenance service contract for the project with the successful bidder as principal for the airport and as agent for the first respondent and the joint venture comprising the first and third respondents [ACSA].

The bidding process

[5]

A request for pre-qualification document was issued by the first respondent. Parties who wished to qualify as bidders were invited to respond to the document. The bidders would be pre-qualified by the first respondent on the basis of their profile. The pre-qualified bidders were invited to submit bids to the first respondent in response to a document issued by the first respondent, a request for proposals [RFP] with a view to being considered for appointment

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as a 'preferred bidder'. Bids which complied with the RFP would be forwarded for detailed evaluation by an evaluation committee. The first respondent would then appoint the preferred bidder and a reserve bidder, following the evaluation of the bids. The preferred bidder would enter into negotiations with the object of concluding a contract in respect of the project; and the contract would be concluded between the successful bidder and the third respondent. The applicants and the seventh respondent were appointed as pre-qualified bidders. They subsequently submitted bids in response to the RFP with a view to being considered as the preferred bidder. What was required of them in that regard was provided for in terms of Clause 6.1 of the RFP as follows:

'As a minimum requirement, bidders shall submit a compliant bid that substantially and materially meets the essential minimum requirements. ["EMR"]'

Such requirements as stated under Clause 6.3 of the RFP consist of –

'(a)

essential minimum technical requirements;

(b)

essential minimum B-BBEE requirements;

(c)

essential minimum commercial requirements; and

(d)

essential minimum legal requirements.'

The seventh respondent was appointed as the preferred bidder. The applicants' bid was declared to be non-compliant on the basis that it did not comply with the essential minimum requirements.

Review proceedings and notice of application to compel

[6]

The applicants, subsequent to the appointment of the seventh respondent as the preferred bidder launched a review application, and on 30 August 2007 caused a notice in terms of Rule 53(1) to be served on respondents which requires the respondents to deliver as part of the record of the proceedings sought to be reviewed various documents itemised on such notice. In a letter of 19 October

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2007 attorneys acting for the seventh respondent expressed preparedness to provide applicants with portions of the bid documents which relate to the performance guarantee and the design of the land side access as issues complained of as being non-compliant in the bid of the seventh respondent.

The applicants' contention is that the issues are not confined to the performance guarantee and the design of the land side access and, in reply referred to other issues, and persisted that the complete bid document be furnished.

In terms of paragraph 10 of the applicants' founding affidavit by Clive Dominic Elliot Rumsey ("Rumsey") the documents to be provided by the first, second and third respondents are those represented in the notice's

paragraph 1;

paragraph 2.1;

alternatively to paragraph 2.1, the

documents in paragraph 2.1 (sic) to 2.6 [Evidently '2.1' should read '2.2'];

paragraph 3.4;

paragraph 4.3 and 4.4;

paragraph 6.

The applicants abandoned paragraph 1.

[7]

As to their respective stances on the application, the first respondent has filed an affidavit purportedly to elucidate the issues from the perspective of a party responsible for the design and implementation of the bidding process and to present evidence not otherwise available to the court, and to state that it abides the decision of the court save with regard to the costs relief sought against it; and it in turn seeks a costs order against the applicants jointly and severally. The second respondent aligns itself with the views expressed by both the first and third respondents; the third respondent likewise abides the decision of the court and does not seek an order for costs against the applicants; the seventh respondent opposes the application mainly on the basis that –

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"all the documents which are relevant to the review have been supplied to the applicants"

The seventh respondent refers to documents already supplied as reflected on annexure "GRI". It also contends that the bid document contains confidential information which relates to the seventh respondent's confidential intellectual property and trade secrets with regard to its suppliers. It also identifies various documents as being irrelevant.

The first respondent in its letter dated 28 September 2007 agreed to make certain documents available subject to any claim that the seventh respondent may have and which it may assert for confidentiality. The first respondent's letter of 19 October 2007 expresses preparedness "to provide [applicants] with the portions of the bid documents" which related to the issue of "the performance guarantee and the design of the land side access."

[8]

The issues brought by applicants on review are whether –

'8.1

there was procedurally unfair action in that –

8.1.1

the first respondent advised the seventh respondent of the alleged shortcomings in the applicants' bid and invited it to make representations as to whether the first respondent should exercise its discretion to exclude the applicants from the tender process;

8.1.2

the seventh respondent's bid was non-compliant in respect of the following:

8.1.2.1

the performance bond and liquidated damages requirements;

8.1.2.2

technical requirements, including passenger terminal design;

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8.1.2.3

changes made to the EPC contract terms;

8.1.3

the price and net present value of the seventh respondent's bid was substantially higher than that of the applicants' bid.

8.2

The applicants' bid did not substantially and materially comply with the Essential Minimum Requirements in regard to:

8.2.1

the B-BBEE requirement in that a 50% procurement spend was offered as against a 70% requirement;

8.2.2

an EPC Performance Guarantee of 5% was offered while a 10% guarantee was required;

8.2.3

the requirement that...