Dispute over SEZA’S multi-million tender emerges
Moraga was responding to a founding affidavit by Moralo Designs, a town planning and architectural firm that had approached the courts challenging SEZA’s decision to disqualify it from a tender for the Master Planning of the Pandamatenga Special Economic Zone (SEZ).
Moralo Designs was a lead partner in a consortium informally constituted for the bid.
In papers filed before court, Mogara argued that Moralo Designs was not entitled to be heard as it never participated in the disputed tender. “We know the bidder as Moralo Design Consortium. Moralo Designs is not the bidder and has no interest herein,” he returned.
In November 2020, Moralo Designs received correspondence from SEZA notifying it that the consortium had been disqualified and inviting it to a debriefing session. Whereupon the Managing Director of Moralo Designs, Sithabile Mathe, argued that the disqualification was invalid because it was not based on evident non-compliance with the stipulated dictates of the invitation to tender (ITT).
She revealed that Moralo Designs was disqualified for not submitting a project plan and project problem. “But these are imaginary requirements that were not stipulated in the tender requirements,” she said. “The ITT also said nothing about milestones, accountable personnel, associated costs and delivery dates of reports. We were penalised on the basis of non-existent requirements.”
However, in response Mogara maintained that the disqualification was valid and justified because the bid lacked vital information as required by the terms of reference, which include the work plan and project programme. He added that the purported ‘project programme’ that was submitted by Moralo Design Consortium failed to depict activity durations, milestones and logical sequence of activities constituent to methodology and showing a clear understanding of the terms of reference.
Further, said Mogara, industry practice dictates that a work plan has to contain the names and qualifications of key personnel. “The ITT also required provision of delivery dates within the programme,” he added. “If they felt that delivery of such requirement would be impossible, Moralo Designs Consortium had an avenue available to consult with SEZA, but they failed to use it. Now they want to use the court through an application that will never materialise or serve any purpose.”
Moralo Designs also implored the court to grant it an interim interdict pending determination of its review application, saying it would otherwise suffer irreparable harm. The design company argued that it had a clear and prima facie right to be considered and successfully awarded the bid in strict accordance with the Tender Terms of Reference. “Our disqualification on improper considerations is a clear violation of our rights that will result in irreparable harm without any legal recompense,” Mathe argued. “It is only proper for SEZA to be restrained from awarding the tender.”
In response, Mogara said the application lacked merit and only sought to delay SEZA from completing evaluation and award of a tender that would serve the greater good of the nation. Moralo Design had no prospects of succeeding in its review application because the court does not have the technical know-how of what constitutes an adequate work plan and what ought to be contained in it, he added. Moralo Designs, he said, would not suffer any irreparable harm as its application failed to satisfy the requirements of an interdict.
“A bidder disqualified for failure to provide adequate information has no right to be protected by the court,” Mogara maintained. “Irreparable harm can only be suffered by one who has shown that there exists a right in so far as having stood a chance to being awarded the tender. Moralo Designs has not established that right.”
Moralo Designs had also argued that the balance of convenience favours the granting of interim relief as SEZA would not suffer any inconvenience from the interdiction. Conversely, Moralo Designs said it would suffer irreparable harm if its review application succeeded after the interdict was refused.
But Mogara disagreed, saying the financial benefit likely to accrue to Moralo Designs was outweighed by the nature of the Pandamatenga project. “In the unlikely event that the application for review is successful, they can claim for damages,” he countered. “The availability of such remedy weighs in favour of the interdict being refused. The refusal stands to benefit the nation more than the financial interest that Moralo Designs seeks to protect.”