On 24 May 2024, the Cape Town High Court dismissed an application to review the award of two tenders for the provision of security services at state properties in the Western Cape. In doing so, the court affirmed that bidders must submit the supporting documents prescribed by the tender specifications and that a failure to do so renders a bid non-compliant.    

A security services provider submitted bids in response to the two tenders. Both bids failed, amongst other reasons, for failing to submit the prescribed supporting documents. The notice and invitation to bid of both tenders provided on the first page that only bidders who were responsive to certain eligibility criteria would be considered. One of those criteria was the submission of compulsory returnable documents, including:

  • reference letters confirming the contract value and details of six prior completed security services projects;
  • a lease agreement for an administrative office that covers the period during which the services would be rendered; and
  • a registration certificate and letter of good standing from the bargaining council.

Potential bidders were also warned at the compulsory briefing sessions that they were required to submit these documents.

The security services provider did not submit the required documents, save for two letters of good standing confirming that its payment of the bargaining council’s levies was up to date. These letters did not confirm that the security services provider was registered with the bargaining council.      

During the review application, the security services provider argued that it had substantially complied with the requirement to submit the prescribed documents because:

  • it had provided three confirmatory letters and a purchase order in respect of six prior projects;
  • it was in possession of a lease agreement that covers the relevant period and that the incorrect document was attached to its bid due to an inadvertent error; and   
  • it was impossible to be in good standing with the bargaining council without being registered.   

The court rejected the security services provider’s arguments and stated that the requirement to submit supporting documents according to the specifications and format prescribed by the tender is not immaterial, unreasonable nor unconstitutional. In addition, a tender authority does not have the power to condone non-compliance with tender specifications unless expressly afforded a discretion to do so in the tender itself or by legislation.   

In the circumstances, the security services provider’s non-compliance was not trivial or minor and the review application was dismissed with costs. The court declined to apply the general principle that costs should not be awarded against an applicant who attempts to vindicate its constitutional rights, on the basis that the matter at its heart concerned the commercial interests of the security services provider.

The judgment is a warning to those bidding for tenders that the requirement to submit the prescribed supporting documents must be adhered to strictly.

The case is Prosec Guards CC v Department of Public Works and Infrastructure and Others (2501/23; 2502/23) [2024] ZAWCHC 139 (24 May 2024).