The South Gauteng High Court has ruled in favour of multinational In2IT Technologies, in a long-running dispute over a South African Police Service (SAPS) tender for the maintenance and support of PBX systems.
The dispute pitted In2IT and the State Information Technology Agency (SITA) against Gijima and its partner Advanced Voice Systems (AVS).
At the core of the disagreement was the awarding of the three-year multimillion-rand contract to In2IT by SITA on 22 January 2021.
Dissatisfied by the decision, Gijima launched an application in the South Gauteng High Court in Johannesburg (the court a quo).
The relief sought in that application was that SITA’s decision to award the tender to In2IT be reviewed and set aside, and be substituted by one in terms of which Gijima, in partnership with AVS, is appointed as the successful tenderer.
Ancillary relief claimed was that SITA be directed to conclude an agreement with Gijima within 30 days for the provision of the services by Gijima pursuant to the tender.
Citing various issues − including alleged unlawfulness and the award of the tender to In2IT being irrational, as well as invalid for want of compliance with the mandatory technical requirements of the bid − Gijima successfully persuaded the court to rule in its favour.
However, In2IT sought leave to appeal against the whole of the order of the court.
SITA and In2IT contended Gijima was a disgruntled, unsuccessful bidder trying to “abuse its monopoly to hold government to ransom”.
The agency maintained that on assessing the bidders’ bid prices, it found there was a substantial difference – Gijima’s bid price was about R160.3 million, whereas In2IT’s bid price was approximately R88.9 million.
The difference was R71.4 million (55.5%).
Gijima’s bid price was not only significantly higher than In2IT’s bid price, but also exceeded SITA's budget for the services by more than R40 million (33.61% above SITA’s budget).
It was therefore only logical for SITA to appoint In2IT as the service provider.
In response, Gijima submitted that, as In2IT did not satisfy the mandatory requirements, it should have been eliminated for non-compliance with the tender requirements.
Nonetheless, on Monday, the South Gauteng High Court ruled in favour of In2IT’s appeal.
Justice LR Adams ruled: “I am not convinced that in the circumstances of this matter, the substitution order granted by the court a quo was just and equitable.
“It seems innately unjust and unfair that Gijima was permitted by the order of the court a quo to adjust its price ex post facto after having had the benefit of seeing what was tendered by the other bidder.
“It may very well be that the circumstances of the present case are such that it falls within the category of those cases where by reason of the effluxion of time and other considerations, notably the fact that Gijima’s price quoted would have cost the fiscus a substantial sum of money more than it is paying to In2IT, an invalid administrative act should have been permitted to stand.”
The court ruled that:
(1) The appellant’s (In2IT) appeal against the order of the court a quo is upheld, with costs.
(2) The order of the court a quo is set aside and in its place is substituted the following:
(a) The applicant’s judicial review application is dismissed with costs, such costs to include the costs consequent upon the employment of two counsel, one being senior counsel (where so employed).
(3) The first respondent (Gijima) shall pay the appellant’s (In2IT) costs of the appeal, including the costs of the application for leave to appeal to the court a quo and the costs of the application for leave to appeal to the Supreme Court of Appeal, all such costs to include the costs consequent upon the employment of two counsel, one being senior counsel (where so employed).
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