Tender reviews after the Constitutional Court: what organs of state must get right

Public procurement remains one of the most heavily litigated areas of administrative law in South Africa. Our team has acted in a number of precedent-setting tender reviews, including proceedings before the Constitutional Court, and the trajectory of recent judgements is clear: courts expect organs of state to demonstrate that every material step in the supply chain management process was lawful, reasonable and procedurally fair.

The standard of review

A procurement decision is administrative action. It must comply with section 217 of the Constitution, the Public Finance Management Act or the Municipal Finance Management Act as applicable, and the framework legislation governing preferential procurement. A deviation from the published evaluation criteria — however well-intentioned — will ordinarily render the award reviewable.

Practical measures

Accounting officers and bid committees should attend to the following before an award is made:

• Record the reasons for every scoring decision at the time it is made;
• Ensure that deviations and expansions are reported and ratified in terms of the applicable instruction notes;
• Verify declarations of interest against the central supplier database;
• Obtain legal opinion before departing from the published evaluation criteria; and
• Preserve the complete procurement record in anticipation of a possible review.

Where irregularities are discovered after award, the organ of state is not entitled simply to ignore the contract. The proper course is a self-review, brought without undue delay. We advise and represent clients in both the bringing and the defence of such proceedings.