Imagine trying to bake a cake with an expired ingredient, one
bad egg and you end up with a disaster instead of a dessert.
That’s exactly what happened when one member’s expired
appointment to the bid evaluation committee caused the cake to
flop. When government and public entities issue tenders, a Bid
Evaluation Committee (BEC) is responsible for the evaluation of the
bids and weighs up each bid before recommending a successful
bidder. This sounds straightforward, but a recent High Court judgment highlights a crucial
point: if any member of that committee is not properly
authorised or appointed, the whole process can unravel.
The judgment, in which we, the FWB Team, represented the
applicants, concerned a dispute involving routine road-maintenance
contracts. Amid the various issues debated, the Court zeroed in on
how one member’s expired appointment effectively undermined the
Bid Evaluation Committee’s composition.
In this case, the South African National Roads Agency (SANRAL)
issued tenders for consulting engineering services for the routine
road maintenance of several freeways in and around Tshwane,
Johannesburg and Ekurhuleni. The incumbent contractor that had held
these contracts for over two decades contested SANRAL’s
decision to award the new contracts to a different bidder, arguing,
among other things, that SANRAL’s Bid Evaluation Committee
(BEC) was improperly constituted.
The Court found that if even one unauthorised person, whose term
of appointment had merely expired, participates in the BEC’s
deliberations, the committee is considered improperly constituted.
As a result, the committee’s recommendations, and thus the
tender awards, are invalid and fall to be set aside. As a
non-member, he had the potential to influence the other
members’ views on the tenders. Thus, the Court found that his
presence and participation caused the BEC not to be properly
constituted and tainted the sitting of the BEC and any decision
taken by it. Decision making committees, like the BEC or Bid
Adjudication Committees, must be properly constituted in order for
them to have the requisite authority to bind organs of state.
Our law is replete with examples of reviews succeeding because
decision-making bodies were improperly constituted. For example, a decision by the Competition Commission was
reviewed and set aside because one of the members of the
Commission, the Commissioner, was absent from the meeting.
It was argued in this matter that it does not matter that one
member’s appointment to the BEC had expired, because a quorum
was present, and enough qualified members were present at the
critical meeting to carry the vote. This argument is inconsistent
with basic administrative law. As Cora Hoexter & Glenn Penfold
says in Administrative Law in South Africa (Juta, at 228)
“as a general rule, and unless a quorum is specified, action
must be taken by all of the members”. The members have been
selected for a purpose and that purpose would be defeated if one or
more of the members were not present at the time of adjudication.
Absent SANRAL being able to rely on any provision in any relevant
document or regulation allowing a non-member of the BEC to
participate in or advise the BEC in connection with the scoring
process or attending committee meetings in an advisory capacity, it
was clear that this egg had reached its expiration date and should
have been kept out of the bowl.
On this ground alone, the Court reviewed and set aside the
decisions of the BEC and the awarding of the tenders. Because the
Court found the BEC to have been improperly constituted, the
ultimate award (and any decisions flowing from the BEC’s
recommendation) had to be set aside. The tenders were remitted to
SANRAL to start the tender process afresh.
In conclusion, a properly constituted BEC is crucial to fair
public procurement processes. As this judgment shows, overlooking a
seemingly minor detail (like an expired appointment) can nullify
the entire process. The Court’s message is clear: thorough
compliance with the rules isn’t optional, and a single rotten
egg has the potential to unravel an entire procurement process.
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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