Unsuccessful bidders last year obtained a court order setting aside the department’s decision to award the tender to 17 of the original bidders.
The court in May last year ruled the awarding of the bid and the disqualification of other bidders constituted improper and prejudicial conduct, maladministration and an abuse of power in state affairs.
The head of the education department was ordered to reconsider and adjudicate on the bid, but the court ordered that the former successful tenderers should meanwhile keep providing food to schools in the National Nutrition Programme.
When the department thereafter decided not to award the bid but rather to re-advertise it, the losing bidders went back to court, insisting the department had failed to comply with the earlier court order.
The department insisted there were certain technical flaws found in the bids and that the head of the department was free to decide whether to award the bid or to cancel it.
However, Judge Elizabeth Kubushi said the head of the department and two committees she appointed had subverted the court order by only checking the bid documents for compliance, but not evaluating the bids for functionality, price and equity ownership.
The department should have disregarded all the bids that were non-compliant, but should have proceeded to evaluate the remaining bidders whose documents did comply, the judge said.
She ruled the decision to re-advertise the tender was irrational, but emphasised the status quo regarding the supply of food to schools should remain in place until the bids had been reconsidered. Judge Kubushi gave the department 15 days to consider and adjudicate the bids of seven of the unsuccessful bidders and 20 days to provide them with a written report about the outcome of the evaluation process.