Court judgment makes a clear distinction between requesting reasons for awarding a tender versus requesting documents of a tender process.
07-03-2023
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Taranis
Source
The Free State High Court recently made a judgment that an aggrieved bidder only has a right to be given written reasons as to why it was not successful in a tender but does not have a right to request documents pertaining to the tender process under the ambit of section 5 of the Promotion of Access to Justice Act (PAJA) of 2000 and that such a right should be exercised under the Promotion of Access to Information Act.
The Court affirmed that “Section 5 of PAJA provides that any person whose rights have been adversely affected by administrative action and who has not been given reasons for the action, may within 90 days, request that the administrator concerned furnish written reasons for the action. Section 5(2) provides that such reasons must be furnished within 90 days after receiving the request.”
In essence, any person who is unhappy with an outcome of a tender process has a right under PAJA to request written reasons as to why their bid was not successful and also the reasons for awarding a contract to a competing bidder.
According to Gerrit Davids, Lead Advisor, TaranisCo Advisory, tendering agency, “It is, therefore, essential that aggrieved bidders and their legal representatives get it right when they intend to engage an organ of state on an outcome of a tender.”
Davids says, “Various pieces of enabling legislation govern the process of requesting written reasons from organs of state, especially those that are applicable to local and other levels of government, each having their own prescribed processes on how to lodge disputes, objections and appeals, respectively.”
“Requesting information on the outcome of a tender, also requires that the aggrieved bidder uses the correct approach in terms of the prescribed form, which must be completed listing all the necessary documentation held by the organ of state, to give access as to what transpired during the overall tender process”, said Davids.
For any further queries, contact, Gerrit Davids
Lead Advisor
TaranisCo Advisory
E-mail: gerrit@taranisco.co.za
Cell. 082 496 1657
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