The High Court handed down a judgment in December 2025 which affirms that bidders for public tenders must comply strictly with the requirements set out in the tender documents, including provisions that may be construed as mere formalities.
The matter arose from a tender for traffic management services issued by a municipality. The tender documents contained a mandatory term that required bidders to initial each page of its bid documents, including all the returnable documents submitted with the bid. Three companies submitted bids.
Two out of three bidders were disqualified on the basis that they had failed to initial each page of their bid documents. The municipality found that the third bidder complied with the tender requirements. The tender was awarded accordingly.
One of the aggrieved bidders challenged the municipality’s decision. This obliged the municipality to disclose the record of its decision, which the municipality did fully only after the aggrieved bidder noticed that pages were missing from the record. It became apparent from the full record that the successful bidder had also failed to initial each page of its bid documents, contrary to the municipality’s finding of compliance with the tender requirements.
Faced with this irregularity, the court explained that the bid should be deemed non-compliant only if the deviation from the requirement to initial each page was material, considering the purpose of the requirement. The court found that the deviation was material, as the requirement aimed to:
- reduce the risk of fraud or tampering with the bid documents;
- ensure that the bidder has attested to the truth, correctness, and authenticity of the bid documents; and
- promote contractual certainty.
Accordingly, the court set aside the municipality’s decision as invalid for the following reasons:
- By finding that the successful bidder complied with the tender requirements, the municipality either overlooked the fact that each page was not initialled or incorrectly concluded that the failure to initial was not a material deviation. This rendered the municipality’s decision unlawful.
- In any event, the municipality’s decision was procedurally unfair, as well as arbitrary and capricious, in that it treated the various bidders unequally.
The court ordered the municipality to run the tender process afresh, with the contracts concluded under the invalid tender award remaining in place until March 2026, to allow the municipality time to do so.