Another Sanral tender process stopped in its tracks

The South African National Roads Agency (Sanral) has been stopped by the Western Cape High Court from proceeding with the opening and adjudication of submitted bids and the awarding of another tender using its controversial new tender scoring system.

Acting Western Cape High Court Judge Ncumisa Mayosi on Monday granted an application by H&I Construction to interdict Sanral from proceeding with a tender for the improvement of the N7 between Piketberg and Piekenierskloof Pass.

The interim interdict was granted pending the outcome of an application by H&I in the High Court in Gqeberha to review and set aside Sanral’s new tender scoring system.

That application is scheduled to be heard in November.

Sanral faces multiple interdicts

H&I director Andrew Gibbard said the closing date for this tender has been extended on six separate occasions over the past three months because of H&I’s application seeking to have the new scoring system that Sanral intends using for its tenders reviewed and set aside.

Gibbard said there is an interdict in place in the High Court in Gqeberha interdicting Sanral from proceeding with its bid adjudications in respect of tenders forming the subject of that application.

He said a judgment in the Hight Court in Pretoria interdicted Sanral from continuing with its tenders in respect of consultancy work nationally, pending the outcome of similar review proceedings in that court.

That application was brought by construction and infrastructure company SMEC South Africa, which was granted an interim interdict stopping Sanral from proceeding with and/or implementing and/or giving effect to the outcome of the tender adjudication process related to a list of 65 bids to tender invitations.

Gibbard said all these applications target the same scoring system, which Sanral has indicated it intends applying in the N7 tender.

He said Sanral informed H&I at 2.45pm on Friday (13 October) that it would be opening the bids for the N7 tender at 11am on Monday (16 October).

Gibbard said if this was done, H&I would suffer irremediable harm, which cannot be undone in due course and for which it will not obtain relief in due course for its application to review and set aside the new scoring system.

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Implications

“Those bidders who submitted tenders would be able to argue that their bids are no longer secret, the contents thereof having been revealed once opened, with the result that the tender cannot be redone, even if the court in Gqeberha were to decide in the pending review that the new scoring system was unlawful, invalid and fell to be set aside,” he said.

Gibbard said H&I’s concern is that “Sanral seems to be forging ahead with this tender” and the tender date has not been extended once again.

He said it only became apparent that Sanral would not be extending this tender during the afternoon of Friday 13 October and H&I then brought its urgent application related to this tender without delay.

He said H&I does not wish to prejudice Sanral’s procurement of the work in question, nor the rights of other prospective tenderers, and had therefore suggested in the past that Sanral proceeds with the allocation of tenders in terms of the previous scoring system but Sanral had rejected this invitation “and now seeks to proceed as if there is no review pending”.

Gibbard added that H&I does not seek to stop the tender itself, nor the allocation of work related to it, but “only to have the blatant unconstitutionality of the process in terms of which the tenders stand to be adjudicated addressed”.

‘Not urgent’ says Sanral

Sanral chief legal, risk and compliance officer Khehla Khoza said H&I’s application was not urgent and any urgency was self-created.

He also denied H&I will suffer any harm “let alone irreparable harm if it is not granted the relief sought” and claimed H&I’s application was without merit.

Khoza confirmed the N7 tender will be administered in terms of Sanral’s new scoring system.

But he said the premise for H&I’s alleged urgency in this case was not the application it brought in the High Court in Gqeberha to review and set aside the new scoring system but is premised on the opening of the bids for the N7 tender as part of the tender administration process.

“This is misguided. The review application in Gqeberha was brought on 13 June 2023. It is at this juncture that a need, and indeed an urgency, may have arisen to interdict any procurement process under the impugned scoring system.

“Yet, several months later, no such application was brought and there was thus no basis in fact or law for Sanral not to exercise its entitlement to procure services under the existing tender, which was not the subject matter of an interdict,” he said.

Khoza said H&I was aware that in July 2023 Sanral extended the closing dates for bids under the new scoring system but this decision applied only to tenders that were to be adjudicated in terms of the new scoring system.

Sanral board decision

He said Sanral’s board has decided that tenders subjected to the new scoring system “would not be administered only where such process was specifically interdicted by court order”.

“This process has not,” he said. “Therefore, to be clear, the urgency did not arise when Sanral communicated its intent to open bids.”

Khoza said H&I’s urgency is therefore entirely self-created and it ought to have sought an interdict in June 2023 given the fact that there was, and indeed there remains no obstacle, to Sanral commencing with its procurement process under the tender.

He said H&I was thus aware for at least four months that the tender could be administered and yet it elected to do nothing.

“It now seeks to hold Sanral’s procurement process hostage, having been dilatory in the exercise of its rights.

“The impact of the applicant’s [H&I] tardiness is not without consequence. The ball has been set in motion and the applicant’s [H&I] tardiness cannot stop a legitimate process where many bidders have an interest and are awaiting finality,” he said.

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No ‘live dispute’

Khoza added that H&I’s application is also premature because the tender process must run its course and it is only once the tender is adjudicated and awarded that it can seek to interdict its implementation, based on an alleged unlawful scoring system.

“But at this point, there is no live dispute between the parties. No decision has been made on the tender, and what is more, the applicant [H&I] has failed to set out any exceptional circumstances that warrant this court interdicting Sanral to exercise a statutory power to procure goods and services,” he said.

Khoza said H&I has not shown what irreparable harm it may suffer in the event that the interdict sought is not granted and claimed Sanral will suffer irreparable harm.

He said Sanral requires the services tendered for to carry out its statutory mandate of managing and controlling the national roads system, adding that without the services tendered for Sanral is effectively precluded from developing, maintaining and rehabilitating the roads within the framework of its policy.

Khoza said H&I also had no standing to bring the application because it has not even tendered as a bidder for the process it seeks to interdict.

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