Johannesburg - Did Rand Water illegally deny a black-owned company a R53 million tender through unfair, non-procedural conduct? Or is this company simply trying its luck to secure the tender after failing to properly see through its application?
These are the questions at the centre of a civil claim against the water utility that was initially set to be argued this week.
Adam Campbell and his company, Kariki Pipeline and Water Projects, have claimed the 100% black-owned company was supposed to be awarded the massive tender based on a recommendation from Rand Water's Bid Evaluation Committee. However, he said the utility wrenched away the agreement in an unlawful and unfair way.
However, Rand Water has argued that Campbell's application to review their decision has zero legal merit, that he had failed to apply for an extension to re-validate his tender application and it had every right to re-advertise the tender.
According to Campbell's founding affidavit, in July 2015 his company had applied to provide Rand Water with fine filter sand for the Vereeniging and Zuikerbosch water treatment plant. He said the tender's validity expiry date was set down for February 13, 2016. However, it was only in 2016 - after the tender application process dragged, with the utility extending the contract of the initial service provider - that he found the tender had been set to be awarded to his company.
During a meeting with chief operating officer, Sipho Mosai, Bid Adjudication Committee (BAC) head, Vusi Kubheka, and Water Quality Services manager, Mathabo Gamede, he was informed he had been recommended for the tender. Campbell claims Khubeka had asked why he had not yet been told as to why the tender had not yet been awarded, as the Bid Evaluation Committee (BEC) had recommended his company. It was Gamede who explained that Kariki had apparently failed in procuring the deal because the validity period had expired. Campbell requested all of the documents relevant to his application.
Campbell's lawyer, Yandisa Dudula has argued the BAC had failed to listen to the BEC’s recommendations. “Rand Water had a duty to take a decision on the (BEC) recommendation... but unreasonably delayed in taking the decision after deferral of the recommendation for the award of the tender until the validity period... expired,” Campbell's affidavit reads. When the tender was re-advertised, a reason for the delay was seemingly that a sourcing manager was allegedly asked to conduct market research to find a “new player” in the market, which Campbell and his legal team say is nonsensical as his new company qualifies as such.
“On this score, (Kariki) also reasonably believes that there is an ulterior motive on part of Rand Water and/or its officials not to award the tender to the applicant,” the affidavit continued.
Kariki is arguing the utility should have informed him he would have had to apply for an extension on the validity of tender application, as they have done in other business dealings with him in recent months. The company is claiming that according to Rand Water's Supply Chain Management Policy, he should have been contacted to ask him to apply to extend the validity period.
“This is unprocedural, unlawful and unfair administrative action committed by Rand Water,” said Campbell's affidavit. He has asked the High Court in Johannesburg to order Rand Water to review their decision and/or grant the tender to Kariki.
In its responding papers, Ntombifikile Sithole, executive at the utility, has denied Campbell's claims. Sithole’s affidavit explains the court does not have the power to make such an order against an organ of state, and that a review application is out of time.
Rand Water has argued that Campbell was aware that the validity date of his application ran out in February 2016, and even if it was true he only found out about his failure in September that year, he waited more than a year before bringing his current court challenge.
“Instead, the applicant only instituted these proceedings on 27 July 2017 the applicant was required to bring this application without unreasonable delay and not later than 180 days after the date on which it was informed that the tender was not awarded,” read Sithole’s statement.
Rand Water has also insisted it was well within its rights to cancel the tender and later re-advertise, as the validity period of Kariki and the other 17 companies who applied had passed months before the new tender process.
While the case was meant to be heard on Wednesday this past week, Dudula said Rand Water had not filed its responding papers until that morning, meaning the case would have the be re-enrolled.