Another Clanwilliam Dam tender award faces court challenge

The Department of Water and Sanitation is facing a high court application demanding that it provide reasons for the award of a tender for work on the Clanwilliam Dam in the Western Cape to a contractor whose bid price was a staggering R148.9 million more than the lowest and only other bid.

The application, launched by a subsidiary of the JSE-listed Raubex Group, is scheduled to be heard in the Western Cape High Court on Friday.

Raubex is seeking an order compelling the department, within five days of an order being granted, to provide it with full and written reasons for its decision to award a tender for the 35-month contract for drilling and blasting for the Clanwilliam Dam foundation excavation and slope protection to Midrand-based Phoenician Group and not to Raubex Construction.

Phoenician submitted a bid of R807 590 184.50 for this tender, which is 22.61% higher than the R658 657 543.57 bid submitted by Raubex Construction.

The information Raubex is seeking through its application includes:

• The date on which Phoenician was appointed the successful bidder for this contract;
• A copy of the letter of award to Phoenician;
• Copies of all evaluation reports, including the bid evaluation committee’s reports, related to this tender;
• Minutes of the bid evaluation committee meetings(s) and bid adjudication committee meeting(s), together with any reports submitted by these committees and recommendations these committees made related to this tender;
• Completed form of offer and acceptance documents as per the tender document for this tender;
• Written reasons why this tender was awarded to Phoenician and not to Raubex Construction; and
• Proof that Phoenician submitted the name of a blaster with a valid SA Police Service (SAPS) certificate with its tender.

Comment was requested from the Department of Water and Sanitation by Moneyweb about both the award of the tender and the court application, but a response has not yet been received.

‘Bidder did not comply with requirements’

Raubex Construction alleges that Phoenician did not comply with the mandatory and functionality requirements set out in the tender and should, in terms of the peremptory criteria of the tender criteria, have been disqualified from the tender.

It alleged that Phoenician seems to have been given an opportunity by the department to cure a fatal defect in its tender and thereby received an unfair advantage over Raubex Construction.

Raubex Construction claimed that tenderers for this contract were required to submit proof of their managerial capacity, and more specifically, that of a blaster with a valid SAPS clearance certificate.

It highlighted the criteria for the blaster, as set out in the tender data, where each tenderer had to submit proof that it has:

• A blaster as part of its management;
• The blaster listed as part of its management has a minimum of 15 years of experience as a blaster and must have more than 10 years of experience relevant to this project after receiving certification of competency (blasting tickets); and
• The blaster’s qualifications and experience had to be supported by an attached curriculum vitae along with a certificate of competency.

Raubex Construction alleged that a blaster, who has substantial experience in projects of this nature and has worked for the company on various similar previous projects, was approached by someone from Phoenician’s bidding department to join them as a sub-contractor for this tender as a blaster.

It claimed its blaster told the person from Phoenician that he had already tendered with Raubex Construction and was not willing to “jump ship”.

Raubex Construction alleged that Phoenician subsequently informed its blaster for this tender that it did not submit details of a blaster with its bid documents, and that Phoenician was contacted by the department to correct this and that Phoenician would be awarded the tender if they got a blaster.

A Raubex Construction employee was allegedly subsequently informed in passing by a person from another blasting company that it would be the blaster on the project and that the tender would be awarded to Phoenician – which subsequently happened.

Raubex Construction alleged that it is clear that Phoenician did not comply with the mandatory requirements and the functionality requirements as set out in the tender data of the department and should have been disqualified if it did not comply with these terms.

‘Unfair and undue advantage’

It further claimed that Phoenician seems to have been given an opportunity by the department to cure a fatal defect in its tender after the close of the bidding process and, as such, received an unfair and undue advantage over Raubex Construction, which was the only other bidder when it was clear that Phoenician did not comply with the tender data and therefore should have been disqualified.

Raubex Construction said it instructed its legal representative to obtain the reasons from the department for awarding the tender to Phoenician and not to Raubex Construction as the lowest bidder.

It said the company’s legal representative also asked the department if the tender had been awarded and, if so, to which bidder, but did not receive a response.

Read:
Raubex set to challenge award of Clanwilliam Dam tender [Jul 2023]
Clanwilliam Dam tender: Mchunu will have to launch high court action [Sept 2023]

Raubex Construction also allegedly failed to get a response to a further letter sent by its legal representative to the department about the award of the tender.

It claims that on 17 July 2023, it obtained knowledge through the department’s website that the tender was indeed awarded to Phoenician at a bid price of R800 241 033.89.

Raubex Construction added that the department’s refusal and/or failure to supply it with the requested reasons, documents and information left it with no alternative other than to approach the high court for the relief it is seeking.