Pretoria - The hearing of the City of Tshwane’s application for leave to appeal against the March 18 judgment overturning the awarding of a R4 billion fleet management tender was yesterday postponed by the Gauteng High Court, Pretoria, to Thursday.
This was after Xmoor Transport (Pty) Ltd, one of the service providers that opposed JL Excavators (Pty) Ltd’s initial legal challenge against the tender in question, indicated it only learnt about the hearing yesterday morning. JL Excavators had approached the court on the grounds that the City had flouted tender procurement regulations.
The multimillion-rand tender SSO4, which was advertised in March last year, was awarded in August 2021. The contract focused on the corporate hire of construction vehicles, yellow plant equipment, refuse removal vehicles, specialised equipment and machines for the city.
In the latest ruling, Judge Margaret Victor indicated that the setting aside of the tender was suspended until June 30 to allow the new tender process to be concluded. “Until June 30, 2022, the first respondent shall submit a report every 20 days recording in meaningful details the progress of the steps taken in the tender process,” said the ruling.
The City’s application for leave to appeal was made after the court ordered for the contract to be re-advertised. The City believed that it had a good prospect of success to win the case at the Supreme Court of Appeal if granted leave to appeal.
The application was made despite a contention from JL Excavators that the municipality failed to file its leave to appeal notice within the legally prescribed period of 15 days following the judgment. The City, on the other hand, said it could not have filed 15 days after the March 18 ruling because it was still waiting for a written judgment which was only delivered on April 6.
In its application, the municipality pointed out numerous errors in the judgment, including that Judge Victor got it wrong by not dismissing JL Excavators’ application with costs, including the costs of two counsel. The City also said the court’s finding that the municipality proceeded with the implementation of the tender when it had not concluded the evaluation process has no basis in the facts and evidence and was “plainly wrong”.
“The court erred in not finding that the Standard Operating Procedure authorised and empowered the City to request bidders to extend the tender validity period in exceptional circumstances provided the City requested an extension in writing from all bidders before the expiry date, both of which requirements were, on the facts and evidence before the court, met,” the City said in court papers.
The municipality also said the court erred by not taking into account “the serious consequences for the public if the contracts are terminated and that it is imperative that the services are carried out without disruption”. The City also indicated that “a re-tender will not result in any financial benefit to the public purse”.
“The cost is likely to be the same but amounts tendered will inevitably and likely be higher resulting in a significant loss to the fiscus,” the City said.
The same tender was also halted in December 2020 by the City, citing possible collusion involving officials and contract bidders after the bidding process was flagged by a Nexus Forensic Services report.
At least 71 public servants were found to have either direct or indirect conflicts of interest in the bidding process and 35 bidding entities that shared directorships failed to disclose their status in the bidding documents, which smacked of collusive bidding, according to the report.