In Dr JS Moroka Municipality and Others v Betram (Pty) Ltd and Another [2013] ZASCA 186, the Supreme Court of Appeal dealt with an appeal against a decision by the High Court to require the evaluation of a tender that had initially been disqualified for not having included an original tax clearance certificate.

The Dr JS Moroka Municipality had advertised a tender for the supply and delivery of 6,000 VIP toilets. The tender documents listed the submission of a valid and original tax clearance certificate as aprerequisite for evaluation. Betram (Pty) Ltd submitted a bid but was disqualified by the municipal bid evaluation committee because it included a copy of a tax clearance certificate and not an original. The tender was awarded to a rival bidder, Eldocrete CC.

The High Court ruled that the disqualification of Betram’s bid was administratively unfair. It declared the award of the tender to Eldocrete to be invalid.

On appeal, the SCA held that it was for the municipality to decide the prerequisites for a valid bid. The failure to comply with prescribed conditions would result in the disqualification of a bid unless the prescribed conditions were immaterial, unreasonable or unconstitutional.

Moreover, the SCA found that the municipality had no discretion to condone a bidder’s failure to comply with a prescribed condition. If Betram had failed to submit an original tax clearance certificate then its bid was not an acceptable tender, as defined in the Preferential Procurement Policy Framework Act 5 of 2000 (PPPFA). Accordingly, the municipality was perfectly entitled to have disqualified Betram’s bid.

The SCA upheld the appeal, with costs.