Durban - A Bluff security company’s high court application to review and set aside two decisions by the eThekwini Municipality for security services tenders has been dismissed.
Tactical Security Services had accused the municipality of unlawfully cancelling a legitimate tender process for a R23.3 million-a-month city security contract, and then using its controversial emergency regulation to “illegally” secure the same services at almost twice the cost.
The Bluff company went to court in July with the city opposing the application.
Oral arguments were heard last month in the Durban High Court before Judge Johan Ploos van Amstel.
He recently handed down judgment dismissing the application and ordering the security company to pay costs.
The respondents in the matter included the municipality and its existing service providers – Enforce Security Services, Isidingo Security Services (KZN), Royal Security, Sharks Protection Services, Vusa Isizwe Security, Imvula Quality Protection Services, KwaZulu-Natal Security Serv-ices, Secureco Metsu and Khuseleni Security and Risk Management.
Tactical Security Services had asked the court to review and set aside the municipality’s decision to cancel the original tender and to force it to continue with the evaluation process, as well as declare the second tender process illegal.
The first tender was advertised in January 2012 for the provision of security services from 2013 to 2016.
The tender closed in March 2012, and 70 bids were submitted, including one by Tactical Security.
According to the judgment, after the tenders were opened, a document auditing process followed to ensure the tenders were compliant and a report was compiled by the Bid Adjudication Committee.
“All this took much longer than anticipated. The tender was not awarded within 85 calendar days, with the result that the validity period of the bids expired on June 1, 2012,” the judgment read.
The municipality wrote to the tenderers and requested them to extend the validity period of their bids to June 2013, or until the date of the award.
The tenderers, including Tactical Security, agreed to do so. But by June 2013, the tender had still not been awarded and in August 2013, the municipality requested a further extension until March 2014. Again, the tenderers agreed.
In October 2013, the committee recommended that the final award had to made by city manager S’bu Sithole, in his capacity as the city’s accounting officer, as the amount involved exceeded R10m.
By March 2014, the last day of the agreed extension, the tender had still not been awarded, and Sithole later decided not to approve the award of the tender and referred the matter back to the committee, and also called for an audit of the tender process.
The city had argued that an independent review was requested because the value of the three-year tender totalled R828m, there had been problems awarding the tender in the past, and to eliminate any challenges to the tender process and award.
“The committee resolved on April 14, 2014, to rescind its recommendation regarding the award of the tender, and to start the tender process afresh,” read the judgment.
The city notified the tenderers that the entire bid process had been cancelled and that no award would be made.
Among the reasons given, was that when the city requested an extension of the validity period of the bids, it had already expired and this invalidated the entire process.
Tactical Security argued that the reasons given for the cancellation did not justify the city’s decision and contended the extensions were valid, or, alternatively, should be taken to have been valid.
The company also argued that after the main tender was cancelled, seven of the res-ponding companies were “illegally” awarded a 15-month contract in a new “closed” tender process under Regulation 36 of the Municipal Supply Chain Management Regulations, which gives the city powers to award contracts outside the normal tender process in special circumstances and emergency situations.
“The result follows from the facts. The applicant’s attempt to obtain an order directing the municipality to complete the tender process after it had lapsed was manifestly inappropriate,” the judge said.
Daily News