Special Tribunal sets aside Eastern Cape Covid-19 tender extension

The Special Tribunal on Wednesday declared unlawful and set aside the 2020 extension of a tender awarded to a company to conduct a Covid-19 campaign for the OR Tambo municipality in the Eastern Cape.

The tribunal also ruled that the municipality is not liable to Phathilizwi Training Institute for the two tax invoices the company issued totalling R4.857m.

The Special Investigating Unit (SIU) brought the application seeking to declare the extension unlawful and void. Phathilizwi opposed the application.

In January 2019, the municipality awarded a tender to Phathilizwi to conduct community education workshops within the municipality for 12 months. The SIU had no issue with the awarding of the tender.

On February 24 2020, the municipality extended the contract by six months.

While conducting an investigation into Covid-19 related procurement, as authorised by President Cyril Ramaphosa, the SIU alleges it found irregularities in the extension of the tender, leading it to launch the present proceedings.

The SIU alleges there was noncompliance with the regulatory prescripts when the tender was extended. It also  alleged no services were rendered in terms of the extended tender.

Phathilizwi argued that the tender was properly extended.

Phathilizwi said in the event that the tribunal finds the tender was irregularly extended, it is not just and equitable for it to be stripped of the profits it earned from the extended tender as it performed the required services.

In her judgment, tribunal president judge Lebogang Modiba said the original tender was in respect of a community outreach programme aimed at encouraging community members to participate in municipal programmes with full understanding of local government processes.

She said the extended tender was for a completely different activity; namely the Covid-19 door-to-door campaign.

Modiba said in these  circumstances, the extended tender was,  for all intents and purposes, a new tender and the prescribed procurement process had to be followed when awarding it. For that reason, Modiba said, Phathilizwi has not provided evidence of the costs incurred when allegedly rendering the services under the extended tender.

Modiba ordered that Phathilizwi was liable for the SIU’s legal costs of the review application, and the costs of March 3 2021, when the matter was removed from the roll at Phathilizwi’s request.

She said Phathilizwi was liable for the SIU’s legal costs when the default judgment was granted in favour of the SIU in April last year, and the costs of the application for the rescission of the default judgment.

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