CONSTRUCTION TENDER AWARD DECISION REVERSED

MBABANE – Costly mistake!

A construction company has successfully challenged a decision to lose a tender to a competitor following mistakes by the procuring entity. Successfully challenging the over E2 million road rehabilitation tender issued by Hlatikhulu Town Board was a company styled Encakini Construction. Encakini Construction (Pty) Ltd had submitted an application to the Independent Review Committee (IRC) on October 18 last year after they had tendered for the rehabilitation of the road in Hlatikhulu. Hlatikhulu Town Board had been cited as a first respondent in the matter and had issued an intention to award the tender to Bahle Besuthu and SLS Construction Joint Venture for the sum of over E2.7 million (E2 739 817.77) on October 1, 2021. The latter had been cited as the second respondent.

Opening

The town board when opening the tender document reportedly recorded that the amount tendered by the second respondent was the sum of E2 783 924.60 and not the sum of E2 739 817.77 which they submitted was the amount which was accepted as the best tender. At the opening of the tender, the first respondent was found to have failed to inform the parties that a discount had been given by Bahle Besuthu and SLS Construction Joint Venture and recorded the same. The applicant (Encakini Construction) alleged that they only became aware of the said award on or about October 4 this year  and proceeded to enquire from the town board by a letter on the same day on how the evaluation of their tender was increased.

The second respondent is said to have not responded to the same.  On October 5, the applicant issued a letter of what he called a review. Three days later (October 8),  the town responded to the construction company’s letter and attached a detailed schedule of the tenderers and amounts for each person who had tendered and the totals for each. The said schedule listed the total for the construction company as E2 794 360.53 and the joint venture’s as E2 914 699.78. The applicant was not satisfied with the said response from the town board and on October 18 served the IRC with the appeal notice. “To the contrary, all the documents by the first respondent that the amount was higher than that which they now claim was the discounted amount,” reads the ruling in part.

The letter which offered the discount was said to be the third document in the tender and therefore would have been seen by the first respondent when he opened the tender and read the offers by the tenderers. “It is difficult to accept that the first respondent would have missed the amount on the day the tender was opened because the amount is clearly stated in the same letter where the supposed discount was given,” ruled the IRC. The successful tenderer, in the IRC’s view, is Ncakini Construction and the town board should proceed to conclude a contract with the applicant and award the latter the tender as the most responsive.

“The award is therefore set aside and replaced with the award as being that of the applicant and not the second respondent as the intended person,” said the IRC. The IRC further said the process of the award could not be explained and justified by the first respondent. For these reasons, among others, the Committee was of the view that the town must pay a refund of 50 per cent of the costs of the application to the IRC, which were paid by the applicant for lodging the application. Lucky Howe chaired the IRC when the matter was heard. Meanwhile, the contentious tender is for the rehabilitation of the Hlatikhulu Main Road between the Government Hospital and Buy Cash Hardware Store. The works will consist of storm-water drainage, layers works and installation of kerbs.
Involve
It will involve construction of open storm-water drains, repairs and rehabilitation of existing road, construction of subsurface drain along the roads and landscaping. Furthermore, the works included in this contract would also consist of site establishment; accommodation of traffic; setting out of works; removal of existing asphalt including breaking and cutting away; the relocation of and protection of existing services; the clearing and grubbing of the areas on which construction is to take place; processing of pavement layers; placing of asphalt; landscaping and maintenance of the works for a period of 12 months. To kick start the process, the Hlatikhulu Town Board had invited tenders from suitable local contractors under the Construction Industry Council (CIC) Category C3 and above.

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