Public Procurement and Asset Disposable Board (PPADB) is seeking Court of Appeal intervention in a case in which High Court Judge, Michael Leburu has ruled in favour of Cul De Sac Construction Company in the P450 million Tshesebe-Mosojane-Masunga Road tender.
Judge Leburu ruled that the P450 million tender be awarded in favour of Cul De Sac instead of Landmark Pty Ltd and Van and Truck Hire Pty Ltd. According to court documents Cul De Sac (Pty) Ltd, Bango Trading, Zebra Construction, Landmark Projects (Pty) Ltd and Van & Trucks (Pty) Ltd were the companies that made bids for the 51 kilometre road tender. In his judgment Leburu said Independent Complaints Review Committee had deliberately disregarded the tendering and procurement laws.
But Tshiamo Rantao’s (representing PPADB) bone of contention is that judge Leburu could have remitted the matter to PPADB and not to make a substitute order in favour of any company. In their grounds of appeal, PPADB said the judge has misdirected himself by ruling in favour of Cul De SAC in holding that the 4th and 5th Respondents supported the application, when the 4th and 5th Respondents actually opposed the substitution being sought. According to Rantao, the judge also failed to hold that there was no evidence of bias and/or connivance on the part of the Appellant at all. “The Judge was also wrong in holding that it was entitled to make a substitution order in favour of the 1st Respondent (Cul De Sac) on the basis that, the Appellant and the 3rd Respondent, having resolved that bidders should be re-invited to submit their bids, the 1st Respondent was inexpiably excluded from so doing without any reasonable explanation,” reads the court documents.
Rantao argued that since the judge said the PPADB and the 3rd Respondent (Government) had exhibited gross incompetence on the interpretation of the Invitation to Tender by initially contending that the tender was an Economic Stimulus Programme (ESP) and subsequently vacillating by stating that it was not an ESP project; a substitutionary order was necessary because this was a developmental project dating back to 2016. Rantao argues that this was wrong. Rantao further said in fact, quite apart from opining that the 6th and 7th Respondent was not technically compliant, the court did not even discuss the compliance of the 4th and 5th Respondents even though these two were lower in pricing than the Applicant. He said in fact, on its version, the Court a quo decided not to even discuss on the technical compliance of the 4th and 5th Respondents’ because it made a clearly incorrect factual finding that “the 4th and 5th Respondents support the Applicant’s prayers for review and substitution.
“The Applicant is the only tenderer standing, in casu, hence a foregone conclusion that it be awarded the tender.” Rantao argues that this is patently and materially flawed; in failing to properly consider and/or make a proper substitution order based on the correct facts herein. He prayed for the Court of Appeal to set aside the decision of the High Court and to order Cul de Sac to pay the cost for both High Court and Court of Appeal. Justice Leburu in his judgement explained that to award the tender or recommend other companies other than Cul de Sac was irrational. The judge was clear that the awarding of the tender to Land Mark Projects and Van & Truck Hire was null and void in terms of regulations of the procurement. He pointed out that the successful bidders ought to have been disqualified at the technical stage of evaluation. Justice Leburu explained that the applicant was the only bidder who was technically compliant and should have been awarded the tender with a recalibration and revision of the pricing thereof, occasioned by the delay and price fluctuations.