Have you tendered to provide goods or services to a government entity, have spent time and money compiling your bid, making sure it ticked each requirement of the tender specifications and then proceeded to hand in your bid before the submission deadline?
Have you ever been so sure that you would be successful with your tender, only to receive an email from that government entity informing you that you have been unsuccessful with your tender, and that it was awarded to another tenderer(s), or even worse you receive no response, leaving you wondering whatsoever may have happened to your bid?
At this point you may be asking what remedies are available to you if you find yourself being an unsuccessful bidder. The objective of this article is to outline the steps that may be taken if you are dissatisfied with a decision of a government entity, but it must be noted that being dissatisfied on its own is insufficient. There should be a substantive basis to your dissatisfaction.
The Constitution
Your first point of reference is section 33 of the Constitution, which provides that every person has the right to administrative action that is lawful, reasonable, and procedurally fair. Furthermore, if your rights have been adversely affected by administrative action you have the right to be given written reasons. It must be noted that the term administrative action refers to, amongst others, a legal decision taken to award or not to award a tender.
Internal Remedies
The first step is to exhaust all internal remedies available, which must be exhausted before approaching the court for relief. In other words, a court’s review jurisdiction is deferred until all internal remedies have been exhausted. This was confirmed in the Lohan Civil-Tebogo joint venture v Mangaung Plaaslike Munisipaliteit case where it was stated that an applicant for review is required to exhaust all internal remedies available to them before proceeding with judicial review.
There are a number of internal remedies provided for in legislation under the Public Finance Management Act. These remedies compel entities such as provincial treasuries to establish a mechanism in which they receive and consider complaints. The Municipal Finance Management Act states that a local government must allow persons who are aggrieved by a decision or action taken in the implementation of its supply chain management system to lodge a complaint within 14 days of the decision or action being taken. Similarly, Section 62 of the Municipal Systems Act provides for relief by stating that an unsuccessful bidder may appeal against a decision by giving written notice of the appeal and reasons to the municipal manager of the local government within 21 days of the date of the notification of the decision.
Appeals
The internal remedy is an appeal to the government entity in which you submitted a tender to. It must be kept in mind that there are strict time limits within which you as the unsuccessful bidder may bring an appeal.
When submitting an appeal to a particular government entity, you need to make sure that you request that the entity provides you with written reasons for the decision taken not to award the tender to you. In addition, a request for information in terms of the Promotion of Access to information Act, 2000 (PAIA) may be submitted to the entity for further information/documents.
There is usually an appeal period of 21 days whereby a government entity will inform a successful whether any appeals have been lodged against the award. Generally, no rights will accrue to the successful tenderer until appeals, if any, have been finalised.
Length of proceedings
The review of a tender can take up to two years and even longer to finalise. This will depend on how urgent the matter is, the relevant court’s caseload, the complexity of the matter, the co-operation of the parties in keeping to the timeframes within which pleadings should be filed, and whether there are any appeals.
Finally, when the appeal process is complete, and the tender is about to be implemented, an aggrieved tenderer may rush off to court for urgent relief.
You can request relief pending the outcome of the review application and secondly you may rely on section 53(1)(b) of the Uniform Rules of Court, which provides that the record of “the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial and administrative functions” must be produced by the decision-maker.
Conclusion
In order to comply with the constitutional requirements governing the tender processes (which is fairness, equity, transparency, competitiveness, and cost effectiveness), it is important to note that there are pieces of legislation providing for internal remedies at local, national, and provincial government levels. All these remedies lie at your disposal and will help in providing you with relief. Knowing what remedies are available will assist if you ever find yourself being the aggrieved bidder.
It is also important to note that if you are successful with your bid, you may also find yourself being an aggrieved bidder if they set aside the award. Hence if you find yourself in a similar position, it is important that you take advice from legal experts at an early stage to ascertain possible options that could be at your disposal.
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