Acting Judge Maake Kganyago set aside the municipality’s decision to cancel a tender for the provision of on and off support services for a three-year period starting on January 1 this year and gave the city two months to adjudicate the tender.
The court previously granted an interim interdict to stop Tswhane from opening and adjudicating a new re-advertised tender pending the review application.
Ruling on the review application, Judge Kganyago ordered the city to give written notice to all short-listed tenderers in respect of the original tender, allowing them to adjust their tariffs upwards or to withdraw their tenders before adjudicating it.
The order followed an application by Nambithi Technologies, which previously won the tender to supply the services to Tshwane.
However, the judge did not set aside the appointment of EOH Ltd in Nambithi’s place, as he said it would have serious and prejudicial results to the public, especially as EOH’s contract expired at the end of the year.
EOH’s services were secured by the City of Johannesburg on behalf of Tshwane, but Judge Kganyago said it seemed that EOH was allowed to augment its tender without giving the other competitors an opportunity to do so.
He said Nambithi’s contention – that even with a discount EOH’s price was still higher than they were charging the city – was never challenged, which was an indication that there were no demonstrable benefits for Tshwane.
It also appeared that EOH had already been on-site the day before the resolution was taken to appoint them, which gave credence to Nambithi’s suspicions their appointment had merely rubber-stamped a decision already made.
The judge said the tender bidders who were present when the tender was cancelled had the opportunity to see the prices of other bidders and it would have been easy for them to adjust their prices for a new tender, which would give them an unfair advantage. It would therefore seem that the tender was cancelled in order to give other favoured bidders the opportunity to adjust their prices, he added.