No choice where bidder fails to submitAdministrative law - Public Procurement


In WDR Earthmoving Enterprises and another v Joe Gqabi District Municipality and others (392/2017) [2018] ZASCA 72, the Supreme Court of Appeal dealt with a tender where a bidder had been disqualified for its failure to have submitted a full set of audited financial statements.

The municipality had advertised a tender for the construction of a sewer system in Jamestown, to eradicate the bucket system of sewage collection. A joint venture, consisting of WDR Earthmoving Enterprises and Cotterrell’s Construction CC, submitted a full set of audited financial statements for the former but submitted an incomplete set for the latter. Accordingly, the municipality disqualified the JV.


The High Court dismissed the JV’s application for the review and setting aside of the municipality’s decision.

On appeal, the SCA observed that the obligation to submit audited financial statements arises under regulation 21 of the Municipal Supply Chain Management Regulations. The requirement is repeated in the Tender Data and the Standard Conditions of Tender for construction projects such as that contemplated in the municipality’s tender. The above provisions indicate that a bidder’s failure to submit a returnable document will result in disqualification.

With reference to its earlier decisions on similar subject matter, the SCA held that the requirement cannot be described as immaterial, unreasonable or unconstitutional. Moreover, the failure to submit the requisite audited financial statements cannot be regarded as trivial or of a minor nature.

The requirement to submit the statements was mandatory. The municipality had no discretion to condone the JV’s failure to have submitted a full set.

Accordingly, the appeal was dismissed.

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