The board on behalf of NUST solicited bids for the provision of security services to NUST by way of an advertisement to this effect on 5 August 2019. The bids had to be submitted by 3 September 2019. A total of 19 bidders responded to the advertisement. Subsequent to the evaluation of the bids and on 4 December 2019 the board through a letter from its chairperson issued a Notice for the Selection of Procurement Award (the selection notice). This was according to the notice done pursuant to section 55 of the Act and reg 38(1) of the Public Procurement Regulations, GN 47/2017, GG 6255, 1 April 2017. In this notice, PIS was informed that it was ‘selected for the award of the Procurement Contract’ and that in the absence of a review within seven days (the standstill period) in terms of section 55(5) of the Act, PIS would be awarded the ‘Procurement Contract’. This notice was also forwarded to the unsuccessful bidders who were informed that if they were not happy with the selection notice they could make an application for a review of the selection within seven days failing which the accounting officer of the board would ‘award the contract’ to PIS.
The selection notice informed all the addressees that the standstill period would apply from 11–17 December 2019. NPS applied for the board to reconsider the selection of PIS. This application was outside the standstill period. The board nevertheless considered the application by NPS but declined it.
On 21 July 2020, the board, through its chairperson, issued a Notice of Procurement Award (the award notice) to PIS. This was according to this notice done pursuant to section 55 of the Act and regulation 39(1). All concerned were once again informed that the award notice was subject to any review of it by an unsuccessful bidder or bidders within the standstill period that would be in place from 23–29 July 2020. The award notice, unlike the selection notice, expressly mentioned that such review application would have to be made to the Review Panel pursuant to section 55(5) of the Act.
NPS acting on the award notice filed a review with the Review Panel timeously and on 10 August 2020 the Review Panel made the following decision:
‘The Board failed to comply with Regulation 35 of the Regulations, in that the deadline for the bids to close was 29 days instead of the mandatory 30 days of the publication of the invitation bid.
Non-compliance with s 52 of the Act – the Board used an evaluation criteria and methodology that was not set out in the bidding document. The evaluation of the bids was not completed in accordance with the criteria set out in the bidding document.’
Based on the above findings of the Review Panel, in accordance with section 60(f) of the Act ordered that the procurement proceedings be terminated and start afresh.
PIS approached the High Court to set aside the said order of the Review Panel. NPS and the board opposed the application. NPS brought a conditional counter-application to declare the procurement proceedings null and void and to compel the board to start the procurement proceedings afresh, based on the non-compliance with ss 47 and 55(4)(a) of the Public Procurement Act 15 of 2015 (the Act). The counter-application was conditional on the decision of the Review Panel being set aside.
The High Court set aside the decision of the Review Panel and also dismissed the conditional counter-application by NPS to declare the decision of the board null and void. The order of the High Court set out above was made on 17 November 2020. It was however not accompanied by reasons and NPS filed a notice of appeal against the whole of that order on 19 November 2020. On 18 January 2021 the court a quo handed down a full judgment which contained the reasons for the order. A further notice of appeal with grounds of appeal thus followed on 5 February 2021.
As the notice of appeal suspended the operation of the order of the court a quo PIS applied for the immediate execution of the order and such order was granted to it on 17 March 2021. This meant that PIS commenced to render the services tendered for shortly after the granting of this order.
Whereas the Review Panel was requested for the reasons for its two findings this was not forthcoming. Furthermore, the Review Panel did not enter into the fray in respect to the application to review its decision despite being cited as a party to those proceedings and neither was an affidavit filed on its behalf in the said proceedings. The reasons for the finding by the Review Panel that the 29 day period was not sufficient is self-evident from the finding and can be dealt with as such. The reasons for the other finding with reference to section 52 of the Act remains a mystery as the factual underpinnings for the conclusions reached in this regard were not disclosed by the Review Panel.
On appeal, and as the interpretation of section 60(c) of the Act could be material to the resolution of the appeal this issue was addressed by both parties. PIS argued that the relevant sections of the Act have been amended since the award and that interpreting the Act as it was when it was awarded the contract is of no benefit. The second and third respondents argued that the appeal is moot because PIS was granted an order to execute its order pending the appeal. NPS argued that PIS should not be able to seek relief as it approached the court with unclean hands due to its non-compliance with the Labour Act 11 of 2007 and its failure to adhere to minimum wages. Additionally, PIS lodged an application (on 6 March 2023) to adduce further evidence on appeal to show that it obtained an order in the High Court allowing it to execute the judgment a quo pending the appeal. PIS intended to adduce evidence to show the extent of services rendered and payments received for such services during the appeal. Additionally, the court determined whether the citation of the chairperson of the board and the board in the review application amounted to a misjoinder/double citation.
FRANK AJA (SMUTS JA and ANGULA AJA concurring) considered the appeal and held that:
- The mootness point taken by the second and third respondents is rejected as the lawfulness of the award of the tender to PIS and its consequences are still live issues between the parties
- The citation of the chairperson of the board and the board amounted to a misjoinder. Rule 76(1) of the Rules of the High Court states that an application should be directed at the chairperson of the tribunal whose decision is sought to be set aside. The separate citation of the tribunal was not necessary. Seeing that the issue was not raised in this matter, courts should not tolerate these misjoinders and should grant adverse cost orders whenever a party is guilty of double citation in the future.
- This court cannot fault the court a quo for deciding not to apply the doctrine of unclean hands against PIS. It is not for the court to police PIS’s compliance with the Labour Act 11 of 2007. Firstly, it is implied that they employ people to render the services for which they tendered that they will comply with the labour law in respect of their employees. Secondly, they (PIS) gave such an undertaking. Thirdly, compliance can be enforced via the labour legislation and the office of the Labour Commissioner. Fourthly, the possible consequences of non-compliance on service delivery has been set out. Lastly, non-compliance may lead to the cancellation of the contract awarded to PIS. It could thus not be said that the bid by PIS was so contaminated by dishonesty that they could not protect the award of the bid to it in a court of law.
- The Review Panel’s failure to provide reasons for its decision was unacceptable and a breach of its legal duty as an administrative body (see Chairperson of the Immigration Selection Board v Frank & another 2001 NR 107 (SC) at 174I). In the circumstances one can only work from the premise that they had no reasons especially for their second decision and hence it was an arbitrary decision. This is sufficient cause to review and set aside the second decision of the Review Panel. Consequently, it is not necessary to deal with the proper interpretation of the Act and the disputes surrounding such interpretation between the parties.
- The one day short notice to prospective bidders was not fatal to the bidding process. The court a quo was correct to dismiss the counter-application.
- There was no need for PIS to bring an application to adduce further evidence as the existence of the order to execute would normally infer that the party in whose favour it was given has been enforcing the order.
- The application to adduce further evidence on appeal is dismissed with costs. Similarly, the appeal is dismissed with costs.
As a result, the application to adduce adduce further evidence was dismissed with costs inclusive of the costs of one instructing and one instructed counsel. The appeal was dismissed with costs inclusive of the costs of one instructing and one instructed counsel.
Namibia Protection Services (Pty) Ltd v PIS Security Services Close Corporation (SA 99-2020) 2023 NASC (5 April 2023)