Tender corruption: Know your rights
Incidents of tender corruption have become common place in South Africa. The effects of corruption on the economy and on the lives of ordinary citizens need no elaboration. At Dr. S S Attorneys, we specialise in tender appeals and reviews. In response to the articles, we therefore provide some useful insight into how aggrieved bidders may challenge tender award decisions.
A decision by a municipality or other government department to award or not to award a bid must be undertaken in strict compliance with a number of laws and regulations. Further to this, all tender processes must comply with Section 217 of the Constitution.
Current laws provide that aggrieved bidders may lodge an internal complaint, appeal or review of a tender decision. It is also very important to know that one need not wait for a tender process to be finalised before one can lodge a complaint.
The awarding of a tender is a culmination of a process. Therefore, in order for the award to be lawful, the entire process must be lawful. For instance, a bidder, or any interested person for that matter, may in the case of a municipal bid, lodge an objection or complaint to the municipality, about any decision related to the implementation of the tender process. The lodging of an objection is therefore clearly not confined to the final award decision.
In KZN specifically, we have a bid appeals tribunal which is a dedicated quasi-judicial body tasked with adjudicating tender reviews. There is a bid appeals tribunal for both municipal bids as well as provincial department bids. This means that if a bidder is aggrieved by a tender award, such bidder may lodge a review to the tribunal. An aggrieved bidder also has the right to request written reasons for a decision.
However, there are time periods within which objections, complaints, reviews or appeals must be lodged. The onus to act timeously is a very important one. A bidder may present grounds of appeal or review both on procedural and substantive aspects of the decision.
Experience has taught us that due to the highly technical nature of a tender process, government departments often fall foul of procedural aspects which may render the award invalid. The bid appeals tribunal in KZN is a highly effective challenge mechanism, prior to a court process. The tribunal has the power, in certain circumstances, to alter or amend the award of the tender or it may refer the bid back for evaluation afresh.
Further, the tribunal is empowered, in deserving cases, to make a ruling on costs. This means that a successful party may have costs awarded in its favour. As an aggrieved bidder you have the right to challenge award decisions.
Our firm has many years of experience in representing clients in such matters. Our attorney, Dr Prenisha Sewpersadh is a recognised expert in this field. She has been representing clients at the KZN tender appeal tribunal since its establishment, appearing in the very first tender appeals in the Ugu District in 2013.
She holds a doctoral degree specifically in tender law matters. Further to her practical experience, she is at the forefront of legal development in this area, writing extensively in academic and peer-reviewed publications. She has and continues to present papers nationally and internationally on the subject. These are purely pursuits of passion undertaken with a desire to make some impact, however small, on the fight against corruption in our country.
Corruption in tender processes will only be curbed if more people challenge dubious decisions. If you are uncertain whether you have grounds for appeal, call us for an expert assessment. Not all tender decisions are tainted by corruption, some may be invalid due merely to technical irregularities. Whatever the ground for review or appeal, we will be able to expertly advise you.
Submitted by: DR.SS ATTORNEYS (Defending Success Together)
126 Queen Street, Shelly Beach.
039 330 5014
https://drssattorneys.co.za/
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