Which undermined the ‘lawfulness, rationality and fairness’ of the procurement process.
The award by the South African National Roads Agency (Sanral) of the R1.57 billion Masekwaspoort tender to a Chinese joint venture (JV) was marred by a host of irregularities that collectively undermined the lawfulness, rationality and fairness of the procurement process.
Sanral chair Themba Mhambi said this in court papers in which he also confirmed that on 22 November 2024 an initial regional bid evaluation committee (RBEC) recommendation that the Base Major-China State Construction Engineering Corporation (CSCEC) JV be awarded the tender had “inexplicably” again been placed before the bid adjudication committee (BAC) without the revised bid evaluation committee (BEC) recommendation, due diligence (DD) report, legal assurance report or draft audit report.
The revised BEC recommendation was that the tender should be awarded to Hillary Construction, the next highest responsive bidder, because the Base Major-CSCEC JV “failed to submit any past performance experience of its own and is therefore non-responsive”.
The Base Major-CSCEC JV submitted six projects to satisfy the requirement of demonstrating the satisfactory completion of projects of a specified value and scope.
But, said Mhambi, none of the projects relied on by CSCEC South Africa were completed by the South African entity itself.
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The experience instead pertained “to related but distinct entities being CSCEC Middle East and CSCEC China”.
Mhambi added that following the initial RBEC recommendation, the management bid adjudication committee (MBAC) declined to make a final recommendation in the absence of key assurance reports.
“These assurance reports, once completed, raised significant concerns about the JV’s responsiveness and capacity to execute the project,” he said.
“The DD report identified insufficient financial indicators, inadequate cash flow, and a lack of technical and managerial capabilities on the part of the JV.
“The draft audit report concluded that the JV’s bid was non-responsive, as it relied on the experience of entities other than the bidding members.”
Mhambi added that in light of these findings, the RBEC revised its recommendation, proposing that the contract be awarded to Hillary Construction.
However, Mhambi said the revised RBEC recommendation and the assurance reports were not provided to the BAC, and the DD report and the findings were not presented to Sanral’s board.
“The BAC thus adjudicated the tender without the benefit of the full suite of relevant information, including the material findings of the assurance processes and the revised recommendation to disqualify the JV,” said Mhambi.
“This implicated the board’s decision-making capacity.”
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Sanral applies to have award set aside
Sanral has applied to the High Court in Pretoria for an order declaring unlawful and setting aside the award of the contract for the improvement of the National Route 1, Section 29, from Masekwaspoort in the local municipalities of Musina and Makhado in Limpopo to the Base Major-CSCEC joint venture JV.
The roads agency is further requesting an order that the tender process start afresh from the stage of the invitation to tender.
It cites the Base Major-CSCEC JV, Hillary Construction and Raubex Construction as respondents to its application.
It is unclear when the application will be heard.
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Whistleblower aspect
Mhambi claimed the evaluation and adjudication of the tender was complicated by Hillary Construction receiving information from internal so-called ‘whistleblowers’, which Sanral contends was unlawfully obtained and not protected under the Protected Disclosures Act.
He said the employees in question did not make a protected disclosure as defined in the act and instead fostered “an improper and collusive relationship with a bidder, providing information both before and after the official publication of the tender process”.
“Hillary’s reliance on this unlawfully obtained and unverified information, coupled with its refusal to disclose the identities of the informants, further taints the process,” said Mhambi.
“Hillary had lawful alternatives available, such as requesting information through the PAIA [Promotion of Access to Information Act] or seeking reasons for the tender outcome in terms of the PAJA.
“Instead, it chose to litigate on the basis of information obtained through improper means, thereby approaching the court unethically.”
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Mhambi said Sanral’s board is acutely aware of the need to address any allegations of corruption or improper conduct and has already initiated a forensic investigation to identify the source of “the leaks” and to determine whether any Sanral employees have engaged in “collusive or corrupt activities”.
Hillary Construction told Moneyweb it acknowledged it received information from ‘whistleblowers’ employed by Sanral – but said that in a letter dated 13 December 2024, addressed to Sanral’s chief procurement officer (CPO) Dr Khomotso Mhelembe, it requested Sanral to confirm the accuracy of the company’s understanding of the information supplied by the ‘whistleblower’.
“When Sanral’s response dated 18 December 2024 failed to provide the requested confirmation, we submitted a PAIA application on 19 December 2024,” it said.
“Thereafter, a PAJA application was submitted for the release of the relevant records. To date, these requests have been ignored.”
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‘Damning information’ from a second source
Hillary Construction added the company acknowledged in its supplementary affidavit dated 27 January 2025 – to its application to interdict the implementation of the project and review and set aside the contract award – that another whistleblower had provided it with documentation evidencing wrongdoing.
“A further individual, whose identity is unknown to us but whom we do not believe to be a Sanral employee, later approached us, stating that he possessed damning information relevant to our case.
“We met with him in April 2025, during which he confirmed the information previously provided to us.
“Accordingly, multiple ‘whistleblowers’ have independently approached us with information in support of our application,” it said.
“It remains our view that there are many ethical employees within Sanral who are deeply concerned about the irregularities taking place.
“The fact that these individuals have chosen to bypass Sanral’s internal whistleblower protection mechanisms and approach us directly speaks volumes,” it said.
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Chief procurement officer’s role?
Sanral appointed its new CPO Mhelembe in July 2024.
Mhambi said the BEC in October 2024 undertook to revisit the outcome of a meeting on 19 June 2024 to revise their recommendation to award the tender to Hillary Construction and not the Base Major CSCEC JV and attend to issues raised by the MBAC in May 2024.
He said the October 2024 evaluations were prompted by Mhelembe’s inquiries and the limited queries raised by the MBAC.
The initial RBEC recommendation to award the tender to the JV was subsequently sent to the BAC without the revised BEC recommendation.
Sanral last week confirmed it had lifted the precautionary suspensions imposed on Mhelembe and chief audit executive Zolisa Zwakala but refused to provide any reason for the lifting of these suspensions.
The roads agency previously did not provide any reasons for the precautionary suspension of these executives effective from 27 October 2025, which was believed to be related to alleged interference in tender awards, particularly the Masekwaspoort tender.
Note
- Sanral suspended the Masekwaspoort contract award in February this year in terms of an agreement reached with Hillary Construction, pending the completion of an investigation by the road agency in the tender award.
- The investigation uncovered irregularities in the adjudication procedure followed to adjudicate the tender and Sanral’s decision to approach the high court to review and set aside the contract award.
- The agreement followed Hillary Construction launching an urgent high court application to interdict Sanral from allowing the Base Major Construction-CSCEC JV from implementing and executing the contract pending the finalisation of Part B of its application, which was to review and set aside the contract award to the JV.
This article was republished from Moneyweb. Read the original here.
