Goodhope Plasterers CC v Independent Development Trust

• Jurisdiction: South Africa
• Judge: Salie-Samuels A.J
• Judgment Date: 29 April 2014
• Docket Number: 5472/2013
• Court: Western Cape High Court, Cape Town
• Hearing Date: 08 October 2013
• Citation: 2014 JDR 0958 (WCC)

Salie-Samuels A.J:

1.

This application concerns a review of a decision to award a tender and a subsequent decision to withdraw the tender. The matter came before me in terms of Rule 53 of the Uniform Rules of Court, a review

2014 JDR 0958 p2

Salie-Samuels AJ

application in respect of a tender process for the construction of the new Plettenberg Bay Magistrate's Court building.

2.

During July 2012 First Respondent (The Independent Development Trust, hereinafter referred to as "the IDT") invited tenders for the construction of the new court building, pursuant to which tenderers submitted bids, inter alia, the Applicant (Goodhope Plasterers CC trading as Goodhope Construction, hereinafter also refered to as "Goodhope") and the Second Respondent (GVK-Siya Zama Building Contractors (PTY) Limited hereinafter refered to as GVK).

3.

The Applicant was represented in court by Mr Olivier SC assisted by Mr. Vivier. Appearing for the First Respondent was Mr.Leech SC assisted by Mr. Mokutu.

4.

On 14 November 2012 the IDT notified GVK in writing that the tender had been awarded to it subject to certain conditions. The other tenderers were formally notified in writing of the outcome of the tender on 1 February 2013. On 19th February 2013 the IDT notified GVK in writing that the award of the tender to it had been withdrawn and reasons for such withdrawal and cancellation of the tender were given.

5.

The Applicant now seeks a review and setting aside of the IDT's decision to award the tender to GVK as well as the IDT's subsequent decision to withdraw the tender. It further seeks an order that the tender

2014 JDR 0958 p3

Salie-Samuels AJ

be awarded to itself (Goodhope) together with ancillary relief as provided for in Section 8 of the Promotion of Administrative Justice Act, Act 3 of 2000 ("PAJA").

6.

The Application was issued on 12 April 2013, for relief set out in the Notice of Motion as follows:

"1.

Interdicting and restraining First Respondent from taking any steps to call for new tenders in respect of tender with reference: TENDER NO: DOJ MC 02, PLETTENBERG BAY MAGISTRATES COURT (HEREINAFTER REFERRED TO AS "THE TENDER"), pending the final determination of this application;

2.

That First Respondent's decision to award the tender to Second Respondent be reviewed and set aside;

3.

That First Respondent's decision to withdraw the tender be reviewed and set aside;

4.

That the tender be awarded to Applicant.

5.

That First Respondent be ordered to take all steps and do all things necessary to put into effect the awarded tender.

6.

That First Respondent pay the costs of this application unless Second Respondent opposes in which event Second Respondent be ordered to be liable for Applicant's costs jointly and severally with First Respondent, the one to pay, the other to be absolved…..."

2014 JDR 0958 p4

Salie-Samuels AJ

7.

IDT opposes the application, while GVK has filed a notice that it would abide by the decision of this Court.

8.

In June 2012 the IDT, upon the instructions of the Department of Justice, was mandated to attend to the planning and implementation for the construction of the new Plettenberg Bay Magistrate's Court. This instruction follows a memorandum of agreement in terms of which IDT has undertaken to assist the Department with its "Construction of New Courts Programme", a project which provides for the construction of new court buildings and the provision of court room furniture.

9.

Pursuant to a bid adjudication process of all submitted tenders by the tender evaluation committee, it was recommended to the tender adjudication committee that the project be awarded to the second respondent, which recommendation was approved. On 14 November 2012, a letter was addressed to GVK informing it of its conditional appointment for the implementation of the project.

10.

Insofar as the tender herein falls within the ambit of administrative action, the evaluation of the tenders is subject to three criteria, that being: functionality, price and broad-based black economic empowerment compliance. Points are awarded to the tenderers according to the assessment of each tender in respect of these criteria. The tenderer who scores the highest points, is awarded the tender. In particular, the black economic empowerment criterion (hereinafter

2014 JDR 0958 p5

Salie-Samuels AJ

referred to as "the B-BBEE-evaluation") constitutes 10% of the total criteria, for which points are awarded on a scale of 1 to 10.

11.

It was conceded by the First Respondent that an error had been made in the tender evaluation of the Applicant's B-BBEE status in that it was incorrectly awarded 8 points as opposed to 9 points in light of its level 2 B-BBEE status.

12.

The First Respondent further conceded that a calculation, allocating the correct points in respect of Applicant's B-BBEE status, would render the Applicant as the highest point scorer.

13.

In correspondence addressed to IDT by Goodhope's attorneys on 4 and 11 February 2013, Goodhope pointed out this error and insisted that it was entitled to have been awarded the highest score in respect of the tender. It was thus demanded that the award of the tender to GVK should be set aside and that the tender should be awarded to Goodhope.

14.

In the absence of a favourable response by the IDT, Goodhope launched an urgent application on 20 February 2013 (refered to as the first application) seeking (a) the review and setting aside of the IDT's decision to award the tender to GVK, and (b) an order interdicting and restraining the IDT from taking any steps to implement the tender.

2014 JDR 0958 p6

Salie-Samuels AJ

15.

On the same day the IDT informed Goodhope that the award of the tender had been cancelled, notice having been given to GVK on 19 February 2013 that it was not in a position to negotiate and conclude a contract with it and that its appointment under the tender was withdrawn as a result of the unavailability of funds, unresolved land issues and the revised scope of works. The IDT further informed the Applicant that no contract would be concluded with the second respondent, that there would be no site handover and that a new tender would be advertised in the new financial year. In the premise, the first application was not proceed with.

16.

It is not in dispute that the project specifications or scope of the works and a lack of clarity over the design specifications of the new Magistrate's Court have become apparent. Mr. Olivier in fact argued that the new scope of works is yet to be determined and finalised for the construction of this court building.

17.

Mr. Leech argued that whilst it is conceded that an error had occurred as alleged by the Applicant during the tender evaluation process, the correct position of which dictates the Applicant as the highest scorer, the actual scoring of the tenders is no longer relevant. In amplification of this contention, it is submitted that, in essence, the revised scope of works to date sees a...