Is there any (Administrative) Justice in Procurement Processes?

Ulrich Kruger – Director

It goes without saying that every improper performance of an administrative function would implicate the Constitution and entitle the aggrieved party to appropriate relief. An appropriate remedy would be to pre-empt or correct or reverse an improper administrative function, with the ultimate purpose being to afford the prejudiced party administrative justice.

In AllPay Consolidated Holdings (Pty) Ltd & others v Chief Executive Officer of the South African Social Security Agency & Others 2014 (1) SA 604 (CC) (“AllPay”) it was adjudicated that the contract awarded to the successful bidder was declared invalid, with such declaration being suspended pending a new tender completion.

It is well know that any tender process takes months, potentially years to finalise, during which procedure a new and independent Bid Evaluation Committee and Bid Adjudication Committee must be appointed to evaluate and adjudicate the new tender process. Unfortunately, competing entities who are aggrieved and prejudiced are left in no man’s land, whilst the taxpayers money continue to go to those who have been unlawfully contracted.

In a similar application to that of AllPay, Ulrich Kruger, a director of BDK Attorneys, acting on behalf of Mathata General Trading CC and Mabotwane Security Services CC in the Mbombela High Court, sought relief to interdict and restrain the Department of Community Safety, Security & Liaison(“the Department”) from implementing and/or giving effect to and/or continuing in any manner with the tender as related to the appointment of other service providers, pending review proceedings. Further relief was sought to allow those entities who previously held contracts to remain the contracted entities.

In his order of 23 June 2022, the honourable Judge, followed the tried and tested approach of AllPay, ordering that the appointment of the successful bidders be declared invalid, however, suspending the order until such time as it is adjudicated what a just and equitable remedy is in terms of section 172 of the Constitution.

With several mechanisms at its disposal, unlawfully appointed entities are able to frustrate the process for years on end, resulting in any application brought by aggrieved and prejudiced parties to be academic of nature.

It may be so that courts cannot enter into the arena of concluding contracts between Organs of State and bidders, but unlawfully appointed entities cannot continue to benefit from unlawful contracts.

Organs of State should be held accountable in circumstances such as this, and possibly be placed under time constraints to correct defects in accordance with section 172(1)(b) of the Constitution to ensure that consequences of invalidity and unlawfulness be corrected and revered as it accords with the rule of law and principle of legality.

In doing so, aggrieved and prejudiced entities will have an opportunity to compete in a lawful and fair tender process.

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