Sanral engineering consultants panel award declared unlawful

A tender award by the SA National Roads Agency (Sanral) to establish a panel of engineering consultants for periodic and special maintenance and certain strengthening projects has been declared unlawful, constitutionally invalid and reviewed and set aside.

This follows two separate applications by Lathiso Consulting Engineering and Zutari (Pty) Ltd in the High Court in Pretoria to review and set aside Sanral’s decision to reject their bids and award the tender to 32 other bidders for a period of five years.

Sanral issued a notice to defend, but according to the attorneys for Lathiso and Zutari, the roads agency failed to lodge an answering affidavit.

Judge Sulet Potterill issued separate orders in the High Court in Pretoria earlier this month against Sanral in both these cases and awarded punitive costs against Sanral in the Zutari case and costs against Sanral in the Lathiso matter.

Decisions invalid, but no new tender

Judge Potterill’s order declared Sanral’s decision to disqualify Zutari and Lathiso from the tender constitutionally invalid, and reviewed and set these decisions aside.

She also declared the decision of Sanral to award the tender to the existing panel of tenderers constitutionally invalid and reviewed and set it aside.

Judge Potterill further declared that the tender validity period lapsed prior to the tender award in favour of the existing panel of tenders.

She further ruled that there was no valid and lawful extension of the tender validity period of the tender process, and the tender came to an end by the effluxion of time on 7 March 2025.

Judge Potterill also ruled in Lathiso’s application that Sanral was not empowered to award the tender to the 32 bidders on 14 August 2025, and this award is unlawful and invalid and is set aside.

Lathiso and Zutari were unsuccessful in their request for an order directing Sanral to start a new tender process for the services that were the subject of the tender and to advertise or publish a new compliant tender invitation within 14 calendar days from the date of the order.

They both further unsuccessfully requested an order that this advertisement period be not less than and not more than 30 calendar days, and that Sanral shall evaluate and adjudicate the bids received by it and publish its decision on the award of the new tender within 45 calendar days from the closing date for the submission of bids.

Irregularities in award process

Lathiso director Kirsten Brink, in the company’s founding affidavit, highlighted many irregularities in the tender award process.

These included that:

• Sanral’s bid adjudication committee was not properly and lawfully constituted because it consisted of a chair and five other members when it was required to consist of only five members.
• There was nothing in Sanral’s record to prove that members of the bid adjudication committee were properly and lawfully appointed and that they acted consistently with their terms of reference.
• Sanral’s record does not contain signed declarations of interest by members of the bid adjudication committee and a declaration that they did not “purposefully favour or prejudice anybody”.
• There are no minutes of meetings of the bid adjudication committee to show how the committee arrived at its decisions and recommendations, and if members declared their interests as required.
• These instances of non-compliance constitute irregularities in the tender process and grounds for review under the Promotion of Administrative Justice Act (Paja).
• Sanral’s record does not demonstrate that the alleged extensions of the tender validity period were lawfully and timeously requested from all bidders, nor that all bidders agreed to them.
• Sanral’s purported second extension of the tender validity period was unlawful in that it was procedurally unfair because “it assumed silence as acceptance”.
• Sanral’s procurement process did not adhere to constitutional and statutory standards that require fairness, equity, transparency, competitiveness and cost-effectiveness.
• Sanral failed to comply with its internal procurement instruments, and there are instances of non-compliance so obvious that the conclusion of deliberate non-compliance allowed to ensure cannot be avoided.

‘Sheer incompetence’

Zutari engineer and managing director of Transport Africa, Jacqueline Gooch, said in an affidavit that Sanral awarded Zutari a total of 27 out of 100 points for functionality.

Gooch said that based on Zutari’s internal review, its tender submission met all criteria and should have scored 94 points, thereby exceeding the minimum threshold of 80.

She said the “irregular scoring” of Zutari resulted in its disqualification, but if it had passed the functionality assessment, Sanral would have appointed the company to the panel.

Gooch said it is incomprehensible for Sanral to score Zutari only 27 points for functionality, when it is clear from the documents submitted by the company in its tender that it ought to have been scored 94 points.

“This demonstrates sheer incompetence.

“The score given to the applicant [Zutari] in respect of functionality is so removed from reality that it is difficult not to draw the inference that the respondent [Sanral] scored the applicant [Zutari] in a biased manner,” she said.

Similarities to other applications

These two cases have strong similarities with the applications by Botle Ba Africa Roads and BCB Solutions, each of which has a number of other applicants, to review and set aside the award of a tender by Sanral to establish a routine road maintenance (RRM) panel and where the number of contractors providing RRM services to Sanral for a five-year period was reduced from more than 300 contractors to 13, with plans to add 20 more companies.

The Botle Ba Africa and BCB Solutions applications were scheduled to be heard in March this year, but were postponed because of disputes over the completeness of the tender record, including key documents such as the supply chain management manual, bid submissions and meeting minutes.

It is believed that Sanral is now considering launching a high court self-review application to set aside the tender and also plans to seek a settlement with Botle Ba Africa, BCB Solutions and the other bidders involved in the two matters.

This article was republished from Moneyweb. Read the original here.