All 4 Security Services CC and Others v The City of Cape Town and Others (11496/2021) [2022] ZAWCHC 182 (15 September 2022):

The Western Cape High Court (“court”) recently reviewed and set aside the advertisement of a tender by the City of Cape Town (“City”) and consequently the award of the contract, for the impugned advertisement’s failure to disclose the particulars of the services required. The tender was advertised to require the provision of “facility and case management services”, which services the City later admitted to materially entail the provision of security services. The contract under the tender had been awarded to a joint venture which was the only tenderer whose submission was adjudged by the City’s officials as responsive.

The applicants in the matter were not the unsuccessful tenderers, but parties who carried on business in the provision of private security services. As such reviews would ordinarily be brought by unsuccessful tenderers, their case and/or standing to launch this review application was inter alia that the impugned advertisement was unlawful and/or unconstitutional, and that they would have paid attention to the tender had the wording conveyed the provision of security services under the contract.

In its judgment, the court stated that an advertisement of a tender contract could not possibly satisfy constitutional and other legislative requirements if it did not also convey with adequate clarity the nature of goods or services sought to be procured. It described the potentially adverse consequence of inadequate advertising on the considerations of transparency, competitiveness and cost-effectiveness identified in section 217(1) of the Constitution as axiomatic.

The court noted that the City did not furnish any particulars beyond those discernible from the title of the impugned advertisement. A tenderer should have been given an idea of the type of facility that is to be managed (which the impugned advertisement did). Further, a tenderer should have an idea of the services it was expected to provide if something more than just management is entailed (which the impugned advertisement did not).

The court accordingly found the advertisement to be invalid and contrary to both the City’s supply chain management policy and the prescripts of 217(1) of the Constitution. Moreover, the non-compliant advertisement was also found to have tainted subsequent stages of the tender process and invalidated the award of the contract to the successful tenderer.

The declaration of invalidity of both the advertisement and the contract were suspended for a period of 6 months to give the City time to make alternative arrangements for the lawful procurement of the services currently being provided in terms of the contract.

This recent judgment serves as a useful reminder of the avenue of review which could be utilized by a party where there is similar infringement or threatened infringement of rights falling within the Promotion of Administrative Justice Act No. 3 of 2000.

For more information or assistance, contact us today at info@zimri@attorneys.co.za or 073 400 9639 / 081 710 1886.