Cape Town - The Western Cape Department of Transport and Public Works, now known as the Department of Infrastructure, suffered a major blow in the Western Cape High Court when the judge set aside the DA-led government’s decision to award construction company H&I Civil and Building (Pty) Ltd a multimillion-rand tender for the construction of the new Manenberg School of Skills.
“As the decision to pass over the applicant (Furipoint (Pty) Ltd) was determined in a procedurally unfair manner; was based on incorrect facts; inconsistent with the threshold requirements of section 217(1) of the Constitution; and arrived at by the department using vague and uncertain criteria, the department's decision to pass over the applicant's bid in relation to tender S054/21 and to accept the tender of the third respondent dated 18 November 2021; and the department's decision to conclude the contract with the third respondents for the construction of the new Manenberg School of Skills are declared invalid and are accordingly reviewed and set aside,” said Western Cape High Court Judge Hayley Slingers.
Furipoint turned to the court after it failed to secure the tender despite scoring more points in the bidding process.
According to court papers, Furipoint was deemed responsive and scored more points than that of the H&I. It was also lower in costs than H&I.
However, the department decided to pass over Furipoint’s bid and accepted that of H&I.
Aggrieved by this, Furipoint argued that the department’s decision was based on material factual errors and was procedurally and substantively unfair.
Among the department’s reasons for overlooking Furipoint was that its financial statements showed no evidence that it had the financial capacity to sustain the project.
“The department cited the applicant’s age of approximately two years and its failure to provide a bank rating letter.
“Neither of these factors are objective nor justifiable and were not contained in the tender invite.
“On the contrary, these factors undermine the objectives of the Construction Industry Development Board (CIDB) Act to transform the construction industry and to open it up to emerging companies.
“Consequently, the decision to pass over the applicant and to award the tender to the third respondent was contrary to the provisions of section 2(1)(f) of the Preferential Procurement Policy Framework Act (PPPFA).”
The department was ordered to go back to the drawing board, by remitting its decision for reconsideration.
The R84 million project, which was initially scheduled to take 87 weeks to complete, reportedly should have opened at the end of 2023 already.
It is expected to offer pupils who would potentially drop out of the mainstream academic curriculum the opportunity to pursue their own passion in a skills education environment.
Approached for comment on steps it had taken to remedy the situation, spokesperson for the department, Ntobeko Mbingeleli, said they were informed of the judgment on Wednesday afternoon.
“We are awaiting the formal correspondence, whereafter we will study the judgment before we are able to decide on the way forward.”
Furipoint director Nawaal Rajah said: “We are elated with the judgment. It is unfortunate that transformation in the construction industry is affected by the incorrect decisions made by the bid adjudication committee. Whether they are doing it intentionally or unintentionally, only they know. It is important to note we do request that government departments need to be more vigilant to ensure fairness and transparency when adjudication does take place with tenders.”
H&I said it could not comment on the matter, owing to contractual stipulations.
The Western Cape Department of Education and the Infrastructure Department did not respond to questions about the status of the project and its current expected completion date, among others.
Cape Coloured Congress (CCC) leader Fadiel Adams, meanwhile, called on Premier Alan Winde to conduct a forensic audit into both the bid evaluation and bid adjudication committees.
“A cursory glance at the court judgment suggests that high-level employees have made several gross errors they are paid not to make.
“Again the struggling taxpayer will be expected to foot a seven figure amount because the DA has again attempted to exclude a coloured person to the benefit of a white one.
“The CCC would insist that the outcome of the forensic report be made public seven days after its conclusion, in the name of transparency and clean governance, no doubt,” said Adams.
Winde said: “The provincial government will review the judgment and proceed once reviewed. The premier has not received a call for a forensic audit, but if the judicial process recommends one, it will be instituted.”
Cape Times