Though a tender worth R177.1m for the provision of advanced law enforcement and “crash” management services in Johannesburg was messily handled, the Western Cape High Court has set aside an application for it to be reviewed.
Traffic Management Technologies (TMT) lodged the application after it failed to win the three-year tender, which was awarded to road traffic management systems developer Syntell in December 2022.
TMT was one of three bidders for the tender and was disqualified by the Bid Evaluation Committee (BEC) on May 6 2022 after it failed to file certified copies of licence certificates for the equipment it was to supply. A second bidder was disqualified for the same reason. According to the BEC, Syntell was the only compliant and responsive bidder.
TMT is in the business of providing traffic management services to state entities such as municipalities and provincial governments. Their services include front-office services that involve capturing traffic violations or infringements with fixed or mobile cameras and equipment, and back-office services, which is the processing and analysing of captured data and issuing fines and court processes.
TMT had won a previous tender and had supplied these services to the City of Joburg between 2015 and 2017. The tender after that, which ran from 2018 to 2021, was awarded to Syntell.
In 2019, the city decided to review its set up, deciding that it would buy the necessary hardware and equipment needed to do the job, then issue a tender for a service provider to operate the system and be paid on the basis of the number of traffic violations that it captured and processed with the city’s equipment.
Financial constraints
But due to financial constraints, this was not viable, and the city proposed instead that a future service provider would supply all the equipment and manage the entire system for a fixed monthly fee.
The services were to include the capturing, processing and analysis of traffic infringement and accident data either in photographic, digital or documentary form, and the ability to connect with several electronic platforms including eNatis (the National Traffic Information System which contains the national register for all motor vehicle licences and registrations), Aarto (the Administrative Adjudication of Road Traffic Offences system which provides for the administration and collection of fines related to road traffic infringements) and the city’s Ops Centre.
To develop the specifications of this new operating model, a bid specifications committee (BSC) was established to formulate the new system. The specifications were reviewed and approved by the city manager.
The new tender was advertised on February 15 2022, with bids closing on March 22 2022. The tender called for specific front-office equipment including several fixed and mobile cameras with automatic number plate recognition, identity, photo scanning and data-capturing facilities. Back-office system specifications included electronic data and traffic violation-related processing (including notices, summonses and warrants), and payment systems.
The tender documents specified a list of returnable documents that had to be submitted by bidders, which included valid licence certificates for all cameras and devices that were to be used, issued by the Independent Communications Authority of South Africa (Icasa). This was to ensure that the hardware would be compatible with the radio and telecommunications systems used by the city’s law enforcement agencies.
Bidders were also required to attend a compulsory briefing session, which took place on February 25 2022. During the session TMT general manager François du Toit asked for the monthly volume of traffic infringements that were being processed. This was refused by the presiding official who said it would not be “useful” for the tender and entertaining the request would delay the bid process.
Three bids received
At the end of the session, bidders were invited to submit questions, and on March 2, Du Toit submitted a detailed list of questions relating to several aspects of the bid specifications and for the “amount of mobile, fixed-site and handwritten” infringements being generated on a monthly and/or annual basis. He said these figures were necessary as they would significantly affect the price quote.
On March 16, the city sent a letter to all the prospective bidders, but did not answer all of Du Toit’s questions. Despite the city’s failure to give them the information, TMT went ahead and submitted a bid.
The BEC met on May 5 2022 and noted that three bids had been received. They went through them and found that Syntell’s bid complied with all the criteria and disqualified the other two bidders because the copies of their Icasa licence certificates had not been certified. An independent firm of attorneys was appointed to determine that the evaluation process had been fair and that the two failed bidders had been correctly disqualified.
The review process found that the evaluation had been fair and the tender should be awarded to Syntell, which was done on December 2 2022. TMT and the other failed bidder were notified that they had not been successful on December 13 2022. However, TMT told the court they only heard about the awarding of the tender to Syntell through a newspaper report published on December 22 2022. They did acknowledge in their founding affidavit that they were aware that Syntell’s bid at R177.1m was lower than their bid of R190.7m.
TMT told the court they wrote to the city to ask for confirmation of the bid, and asked for a copy of Syntell’s bid. The city responded and informed them Syntell had been decided on as the preferred bidder during an adjudicating process a month earlier. The city said it would not halt the implementation of a service-level agreement with Syntell as this would affect service delivery.
This prompted TMT to lodge a court application, claiming they had been denied their right to procedural fairness in terms of the Promotion of Administrative Justice Act (Paja), claiming that Syntell had been given an unfair advantage, as the bid specifications favoured it over other bidders.
'Irrational process'
TMT said the city’s failure to provide them with infringement volumes “had resulted in an irrational process which undermined the constitutional requirements of transparency, competitiveness, fairness, equitableness and cost effectiveness”. TMT said that the licence copies submitted by Syntell had also not been certified and they should then also have been disqualified.
The city told the court that they had scrupulously followed the requisite legal prescripts and that the system they had called for differed from the old way of working. This meant payment to the service provider would be rendered monthly and was not based on the number of infringements captured and processed.
The city’s head of legal said confusion over whether Syntell's licences had been certified was caused by a mix-up in the filing of the record, and hard copies of documents had been jumbled up and not properly repackaged during the evaluation and adjudication processes. It was later determined that Syntell’s documents had been correctly certified.
Syntell argued that if TMT had an issue with the handling of the tender, they should have brought it up at the time and not waited until December to lodge their complaint — four months later than the period allowed for by Paja.
TMT claimed it needed the infringement numbers to determine a monthly fee that would cover its running and operational expenses but also make a reasonable profit, and that the greater the number of infringements, the higher the running costs.
“I have my doubts about whether the applicant really required or needed the information it sought in relation to the current traffic infringement volumes and whether it was materially prejudiced in any way by not having them. I say this because despite not having this information the bid price which the applicant put up was, remarkably, only R13.6m, or 7.6% more, than that which was put by Syntell,” judge Mark Sher said, finding that the city’s failure to provide the information did not qualify as unfairness.
“It is not only the applicant’s simple complaint of unfairness that is to be put into the scale and weighed. As the respondents point out, annual traffic infringement statistics were publicly available from the RTIA, and its latest report of October 2021 reflected figures for the 2020-2021 years,” Sher said.
“For these reasons the application must fail.”
