[9]
The appeal procedure, as already indicated, is provided for in s 20 of the Procurement Act. Under
this section the appellant is entitled to reasons for the decision (subsection (2)(b)) and the Procurement Committee is obliged to
furnish reasons to the unsuccessful tenderer (subsection (2)(c)). But s 20 says nothing about any entitlement to receive documentation
for the purposes of noting an appeal or that the Procurement Committee or any other relevant body must act fairly towards the unsuccessful
tenderer. Counsel for the third appellant, Infrotrunk (Pty) Ltd, asserted during argument that there was thus no obligation on the
part of the Procurement Committee to act fairly. The argument is misplaced. First, it ignores the fact that the Procurement Act has
as its object the giving of effect to s 217 of the Constitution, to which I have already referred. Second, fairness is inherent in
the tender procedure. Its very essence is to ensure that before Government, National or Provincial, purchases goods or services,
or enters into contracts for the procurement thereof, a proper evaluation is done of what is available and at what price, so as to
ensure cost-effectiveness and competitiveness. Fairness, transparency and the other facts mentioned in s 217 permeate the procedure
for awarding or refusing tenders. (See Logbro Properties CC v Bedderson NO; Metro Projects CC v Klerksdorp Local Municipality; Steenkamp NO v Provincial Tender Board, Eastern Cape.)
[10]
Although there is no specific mention of fairness in the section, it therefore stands to reason that
the requirement has to be read in. The right of appeal afforded by the Procurement Act is partly to give effect to the requirement
of procedural fairness.
[11]
It is significant also that the appeal provided for in s 20 is in substance a review. This is demonstrated
by s 21 of the Act which sets out the grounds of appeal. These are that interference by the Appeals Tribunal may occur only where
the Procurement Committee, a Tender Award Committee or a member of any such committee:
‘(a)
committed misconduct in relation to their duties as members;
(b)
committed a gross irregularity;
(c)
exceeded its or their power;
(d)
awarded a tender in an improper manner; or
(e)
awarded a tender inconsistent with the objectives of this Act.’
An Appeals Tribunal cannot determine whether any of these grounds has been established without reference to the documents that were
before the relevant committee, the record of the relevant meetings and the reasons for the decision. In this matter the Tribunal
would need sufficient information in order to determine (inter alia) whether the third respondent was capable of undertaking the work. This follows from the very nature of the process and the grounds
for interference. There is little purpose served if the unsuccessful tenderer does not know what case it must meet. This is a basic tenet of fairness, which in turn is a fundamental requirement of administrative action.
[12]
The appellant argues that the fairness contemplated in the tender procedure means that it should have
been given sufficient information, by way of disclosure of documents, to enable it to know what material was before the Tender Evaluation
Committee when it concluded that the third respondent was capable of undertaking the work, why the appellant was unsuccessful and
its reasons for coming to these conclusions. This, argues the appellant, flows from the nature of the process and enquiry rather
than from any specific provision of the Procurement Act. The appellant argues that it should have been ‘put in possession of
such information as will render [its] right to make representations a real and not an illusory one.’ (See Heatherdale Farms (Pty) Ltd v Deputy Minister of Agriculture.)
[13]
The argument advanced by the institutional respondents that the appellant should have followed the procedure
set out in the Promotion of Access to Information Act 2 of 2000 (‘PAIA’) cannot be upheld. One has only to look at the
disparity between the time frames prescribed for the request for information under the Procurement Act (s 20) and those laid down
for access to information under PAIA (s74?77) to conclude that the latter Act is irrelevant to the appellant’s claim. Although
the argument based on PAIA was not abandoned, it is not one that counsel for the institutional respondents pursued with any degree
of conviction. What counsel persisted in vigorously was that the institutional respondents could not furnish the documentation because
it was confidential. The appellant, continued the argument, thus failed to prove its entitlement to the documents in question.
[14]
The appellant contended that the respondents had not made out a case for reliance on confidentiality:
if there was any apprehension on the part of the respondent regarding any specific document, that concern could be met by making
an order similar to the one granted by Schwartzman J in ABBM Printing & Publishing (Pty) Ltd v Transnet Ltd, where the parts of the documents in respect of which disclosure might result in breach of confidence were to be identified and marked
as confidential and the applicant’s attorney was prohibited from disclosing such parts to any other party, including the applicant,
save for the purpose of consulting with counsel or an independent expert. In that way a fair balance could be achieved between the
appellant’s right of access to documentation necessary for prosecuting its appeal, on the one hand, and the third respondent’s
right to confidentiality, on the other.
[15]
It is true that the appeal provisions embodied in s 20 of the Procurement Act are very terse. But they
do not, in my view, prevent a conclusion that the Appeals Tribunal must have before it the same information that was before the Procurement
Committee in order to provide a fair hearing to the aggrieved party, in this case the appellant. By the same token the appellant,
too, must have at least that information to enable it to formulate its grounds of appeal. It is clear that s 20 of the Procurement
Act, read with s 217 of the Constitution, contemplates a fair system which envisages that, from the time of the award, the appellant
has the right of access to information necessary to formulate its appeal properly. The argument by counsel for the third respondent
that fairness is not inherent in the appeal procedure provided for in s 20 would, if adopted, lead to absurd or even unconstitutional
results, by denying the appellant access to information, a right to which is entrenched in s 32 of the Constitution. The argument
also ignores the grounds of appeal which by their very nature embody the requirement of fairness.
[16]
I turn to the question of costs. Counsel for the institutional respondents argued that his clients should
not be ordered to pay costs as they had engaged in litigation simply in order to assist the court. The respondents, so goes the argument,
were caught between the competing interests of the appellant, on the one hand, and those of the third respondent, on the other. This
argument is in my view untenable as the institutional respondents effectively did oppose the application for access to documents.
The deponent for these respondents, Dr Kwazi Brian Mbanjwa, even asked for the appellant’s application to be dismissed with
costs. The same approach was adopted in the heads. In its turn the third respondent seeks to avoid costs by contending that it came
on appeal to argue a constitutional point and should for that reason not be mulcted in costs. In my view this argument is also flawed.
We are concerned here with the interpretation and application of the Procurement Act – legislation passed to give effect to
the right of access to information under the Constitution. We are not directly concerned with the interpretation and application
of the provisions of the Constitution. I see no valid reason why costs should not follow the event.
[17]
In the result the appeal is upheld. The respondents are ordered jointly and severally to pay the appellant’s
costs of appeal, including those of the application for leave to appeal and the costs of two counsel where so employed, the one paying
the other to be absolved. The order of the court a quo is set aside and replaced with the following:
‘1.
The first, second, fourth and fifth respondents are ordered to furnish the applicant with the
following documentation within fourteen days of this order:
(i)
The minutes of the Central Procurement Committee meeting at which contract ZNT 2482W was awarded;
(ii)
The complete set of tender documents submitted by the Third Respondent and in particular;
(a)
the Tender Form “Main Contract”;
(b)
the application for preference points claim form (ZNT30, pages 1 – 12);
(c)
the document entitled “additional particulars of the tenderer” at pages 1 – IV;
(d)
the tax clearance certificate submitted by Third Respondent;
(e)
the authority to sign the tender;
(f)
the declaration of interest;
(g)
the site inspection certificate relating to Third Respondent;
(h)
the “Addendum A” form which contains the list of proposed specialist sub-contractors;
(i)
the whole of part 6, together with product pamphlets submitted by the Third Respondent;
(j)
the whole of part 7;
(k)
a detailed exposition of the points awarded to each of the tenderers in accordance with the provisions
of the KwaZulu-Natal Procurement Act (No. 3 of 2001).
(iii)
Letters and/or reports, if any, submitted by consultants GA du Toit (Pty) Ltd in connection with the various tenders;
(iv)
The further documentation which was before the Central
Procurement Committee when it made its decision with regard to the aforesaid tender and which has not been included in the above.
2.
The respondents are ordered to pay the costs of this application jointly and severally, the
one paying the other to be absolved;
3.1
On the copy of each document referred to in para 1 above, the respondents shall mark or record that
part of the document which it considers to be confidential.
3.2
Save for purposes of consulting with counsel or an independent expert, the applicant’s attorney
shall not disclose to any other party, including the applicant, any part of a document in respect of which the respondents claim
confidentiality.
3.3
Should the applicant dispute any claim to confidentiality and should the parties be unable to resolve
such dispute, the applicant shall on notice to the respondents and any person having an interest therein, have the right to apply
to a judge of the Pietermaritzburg High Court in chambers for a ruling on the issue.
3.4
Should circumstances require, either party shall have the right to apply to a judge of the Pietermaritzburg
High Court in chambers for an amendment to paras 3.1, 3.2 and 3.3 of this order.’
_____________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
HOWIE P
LEWIS JA
HEHER JA
VAN HEERDEN JA
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