Durban - Judgement has been reserved in the case of a private company that has taken the KwaZulu-Natal Department of Education to court over a tender to supply and distribute textbooks to high schools across the province.
Modlin E-learning Solutions, a publisher specialising in educational textbooks, alleges that the department has failed to provide the firm with the necessary purchase orders to comply with the tender.
This has resulted in the firm incurring massive expenses with no remedy for recovery, and the high schools in question have been left without the textbooks they need.
The firm alleges that it was awarded the tender by the KZN Department of Education on March 14 to supply and distribute physical science, maths and natural science dictionaries for grades 10, 11 and 12.
Company director David Modlin said the firm stood to lose millions of rand if the department did not provide it with the relevant purchase orders to execute the tender.
Arguing the case on behalf of Modlin in the Pietermaritzburg High Court on Tuesday, advocate Julia Nicholson said the notice of intention to award the tender to the company was issued in January.
After the issuing of the tender, two unsuccessful bidders appealed against the decision, but on March 6, the Bid Appeals Tribunal dismissed the appeal and the decision to award the tender to Modlin E-learning Solutions was upheld.
On March 14, the finance MEC confirmed the decision.
To proceed with the tender, the department needed to provide the firm with purchase orders, which would allow it to proceed with the provision of goods. To date, no such purchase orders had been provided by the department.
Nicholson said the department was obligated to fulfil the tender process and did not have the luxury of awarding a tender and then deliberating on whether to implement it or not.
The provision of textbooks also formed part of a child’s right to basic education.
“It is a violation of this right not to provide these textbooks which are fundamental tools in the learning process,” she said.
Representing the Department of Education, advocate Thulani Khuzwayo, said a notice of intention to award a tender did not equate to the tender’s officially being awarded.
“Because the tender was not awarded, there is no enforceable contract between the parties and the application by Modlin E-learning Solutions is unfounded,” Khuzwayo said.
He submitted that after the appeal was dismissed and the MEC confirmed the intention to award the tender, a letter of award should have been issued by the head of department, Dr Nkosinathi Sishi, to the firm.
This was never done, and hence there was no binding contract between the department and the firm.
He also argued that the department was unable to secure the funds for the implementation of the tender in the 2014-2015 financial year.
“Furthermore, the department cannot be held responsible for the expenses incurred by the firm. This is the risk they took in bidding for the tender,” Khuzwayo said.
The purpose of the application by the firm was about the profit that it stood to gain in the event that the tender was implemented, and nothing else.
Addressing the allegation that pupils were suffering without the textbooks, Khuzwayo said that the tender was for dictionaries and not for the pupils’ main textbooks.
“The main textbooks were delivered to the schools at the beginning of the year by a different service provider. Learning at the relevant schools is not affected,” he said.
Daily News