Government entities are on a tender binge at the moment. With
fresh budgets and post electoral hype filling the corridors of the
organs of state that run our country, there is an unusually high
number of tenders being advertised and awarded. If one simply looks
at any Sunday newspaper it almost seems as if government tenders
have replaced the classified section.
If you trade in the public procurement sphere and tender to
provide goods and services to government entities you will no doubt
have both won and lost a few tenders along the way. On each
occasion you would have spent an inordinate amount of time and
money compiling your bid and there would have most certainly been
the last minute dash to get your tender into the designated tender
submission box before the cut off time.
You would have then spent the date of the award of that tender
eagerly awaiting the receipt of an email from the relevant
government entity congratulating you on your appointment. But what
if the email advises you that you have been unsuccessful or what if
you receive no correspondence at all? Most tenderers simply do
nothing because they are unaware of their rights. This is something
that needs to change and tenderers need to start holding government
entities to account.
A decision taken to award a tender to a third party or not to
award a tender at all is legally referred to as
"administrative action". Section 33 of the Constitution
provides every person has the right to administrative action that
is lawful, reasonable and procedurally fair. Section 33 also
provides that if your rights have been adversely affected by
administrative action you have the right to be given written
The legislature promulgated the Promotion of Administrative
Justice Act, 2000 (PAJA) to give teeth to Section 33 of the
Constitution. Section 6 (2) of PAJA lists various grounds for when
the award of a tender can be challenged by an unsuccessful
In order to challenge the award of the tender to the successful
tenderer one has to base their challenge on one or more of those
grounds. In order to do so, you need to secure the necessary
evidence. When you submit your tender to the relevant government
entity, you need to insert the award date into your diary together
with the contact person's name and contact details at the
government entity who is dealing with that tender (all of this
information will be in the tender).
On the award date, you need to start communicating with the
government entity. Government entities often forget to send out
letters of non-award to unsuccessful tenderers. You should also
check their websites to see whether they have published the award
of the tender on their websites. Government entities often disclose
the name of the successful tenderer on their website so this is a
great place to start.
Once you know that the tender has been awarded and that you have
been unsuccessful you must exhaust all of the internal remedies
available to you to challenge the award of that tender. In the
letter of non-award, the government entity is obliged to inform you
of your right to challenge the award of the tender. The most common
internal remedy takes the form of an appeal. It is an appeal to the
government entity to which you tendered (it is not an appeal to
court) and there are strict time limits within which to lodge your
appeal. You must write to the government entity as soon as possible
and notify it of your intention to appeal the award of the tender
to the third party upon receipt of the letter of non-award.
In that correspondence ask the government entity to provide you
with written reasons for why the tender was not awarded to you and
why it was awarded to the successful tenderer. You must also ask
the government entity for a full record of decision. A record is a
bundle of all of the documents that the government entity used to
make its decision. The successful tenderer's tender document
always forms a part of the record. During this period, the
government entity ought not to proceed with the tender but you must
ask for an undertaking from it that it will not do so. In the event
that it does you will need to rush to court to stop them.
Once you have the record and the written reasons, you can
evaluate your prospects of success on appeal and decide whether you
want to challenge the award of the tender or not. Getting to this
stage is relatively inexpensive and it does not take a long time.
If your merits are good and you succeed on appeal to the government
entity, you can have the award of the tender set aside and even
potentially awarded to you.
If you appeal and are unsuccessful, then your next step is to
proceed to the high court and review the award of the tender before
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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