Johannesburg – A ruling made this week by the full bench of the South Gauteng High Court in a tender dispute has saved taxpayers R71.4 million.
At the core of the dispute was the awarding of the three-year multimillion-rand contract to IN2IT by SITA on 22 January 2021.
Dissatisfied by the decision, Gijima launched an application in the South Gauteng High Court in Johannesburg (the court a quo).
The ruling this week on Monday was in favour of multinational In2IT technologies in this long-running dispute over a South African Police Service tender for the maintenance and support of PBX systems.
The relief sought by Gijima in the application was that the decision by SITA to award the tender to In2IT be reviewed and set aside and that the said decision be substituted by one in terms of which Gijima, in partnership with AVS, is appointed as the successful tenderer.
Ancillary relief claimed was that SITA be directed to conclude an agreement with Gijima within 30 days for the provision of the services by Gijima pursuant to the tender.
Citing various issues including the award of the tender to In2IT being irrational, as well as invalid for want of compliance with the mandatory technical requirements of the bid, Gijima earlier successfully persuaded the high court to rule in its favour.
However, In2IT sought leave to appeal against the whole of the order of the court.
The Supreme Court of Appeal granted In2IT’s application and directed the full bench of the high court to hear the matter.
SITA contended that Gijima was a disgruntled unsuccessful bidder trying to “abuse its monopoly to hold the government to ransom”.
SITA maintained that on assessing the bidders’ bid prices, it found there was a substantial difference in price – Gijima’s bid price was about R160.3 million, whereas In2IT’s bid price was approximately R88.9 million.
The difference meant Gijima’s price was R71.4 million (55.5%) more expensive than In2IT.
Gijima’s bid price was not only significantly higher than In2IT’s bid price but also exceeded SITA’s budget for the services by more than R40 million (33.61% above SITA’s budget).
Hence, it was only logical for SITA to appoint In2IT as the service provider.
In response, Gijima submitted that, as In2IT did not satisfy the mandatory requirements, it should have been eliminated for non-compliance with the tender requirements.
This week on Monday, the full bench of the South Gauteng High Court ruled in favour of IN2IT’s appeal.
Justice LR Adams ruled: “I am not convinced that, in the circumstances of this matter, the substitution order granted by the court a quo was just and equitable.
“It seems innately unjust and unfair that Gijima was permitted by the order of the court a quo to adjust its price ex post facto after having had the benefit of seeing what was tendered by the other bidder.
“It may very well be that the circumstances of the present case are such that it falls within the category of those cases where by reason of the effluxion of time and other considerations, notably the fact that Gijima’s price quoted would have cost the Fiscus a substantial sum of money more than it is paying to In2IT, an invalid administrative act should have been permitted to stand.”
The court ordered that:
(1) The appellant’s (In2IT) appeal against the order of the court a quo is upheld, with costs.
(2) The order of the court a quo is set aside and in its place is substituted the following:
(a) The applicant’s judicial review application is dismissed with costs, such costs to include the costs consequent upon the employment of two Counsel, one being Senior Counsel (where so employed).’
(3) The first respondent (Gijima) shall pay the appellant’s (In2IT) costs of the appeal, including the costs of the application for leave to appeal to the court a quo and the costs of the application for leave to appeal to the Supreme Court of Appeal, all such costs to include the costs consequent upon the employment of two Counsel, one being Senior Counsel (where so employed).
