Durban -
A Durban High Court judge has stopped the award of a tender to build a “village sewer” on the Mzingazi Lake – the source of drinking water for Richards Bay – ordering a speedy review into why the lowest bidder for the job did not get it.
The successful bidder, PMPZ Construction CC, a consortium of “historically disadvantaged individuals” now has to move off site while the review, brought by WJ Building and Civil Engineering CC, is finalised.
Judge Graham Lopes made the order in spite of concerns raised by lawyers for the uMhlathuze municipality that the community of Mzingazi Village may “react unfavourably”.
He said “these problems are of the municipality’s making”.
In his recent judgment, Judge Lopes said the tender for the sewer had been put out last year. WJ Building’s tender was the second lowest at R8.7 million but the lowest tenderer was disqualified.
In July, the municipality informed WJ Building that it had awarded the contract to PMPZ at a price of about R9.6m.
WJ Building set about finding out why, asking for documents so that it could appeal or object to the award.
While this was ongoing, it was advised in March that the PMPZ tender price had now dropped to R8.7m and it had been authorised to move on site, resulting in WJ Building launching the urgent interdict proceedings.
The judge said the municipality acknowledged that PMPZ was not the lowest bidder.
“But it seems to have awarded the tender on the basis that the accounting officer would, in terms of the supply chain management policy, negotiate the price difference between the two tenders.”
He said the bid evaluation committee had recorded that while WJ Building had been the highest scoring tenderer, with the lowest price, it should not be awarded the contract because it had benefited over the past five years from two major projects worth about R49.5m.
The council wanted to encourage the rotation of service providers.
The judge said the reasons put forward by the committee were arbitrary and did not appear in the tender invitation advertisement or procurement legislation.
“While it may be a legitimate objective, the need to encourage rotation was not expressed as a factor which would be taken into account in determining the successful bidder.
“The award therefore seems to have been made on an unfair premise.”
The judge noted other concerns raised during the hearing, including that there was no sewer system in the area and that the villages were putting pressure on the present pit toilet system with the resultant danger of human waste contamination of the Mzingazi Lake, a source of water for Richards Bay and surrounding areas.
There were also fears that the national treasury might reallocate the money for the project if it was not used before June this year.
Because of these issues, Judge Lopes granted the interdict but ordered an “accelerated review” with strict time frames, essentially giving 35 working days for all documentation to be filed.
The Mercury