Black-owned ICT services firm Gijima has won a court case over a South African Police Service (SAPS) tender that was illegally awarded to In2IT Technologies by the State Information Technology Agency (SITA).
In a statement, Gijima says the company has been vindicated in the Gauteng Local Division High Court.
On 21 October, judgement was handed down, awarding Gijima, together with its partner Advanced Voice Systems (AVS), the contract for the provision of maintenance and support for private branch exchange (PBX) systems for SAPS, which had been unlawfully awarded by SITA to In2IT, a multinational from India with a branch in SA.
Gijima’s attorneys Nicqui Galaktiou initiated a review application pursuant to the awarding of the contract to In2IT in December 2020 by SITA.
Aggrieved by the decision, Gijima says it exercised its constitutional right to challenge the unlawfully awarded contract.
“Gijima is pleased that the court considered the procurement laws and regulations in its judgement, which boosts confidence in the justice system and adjudication laws of tender bids,” says the IT services company.
In validating Gijima’s decision to challenge the unlawful award, it was also awarded legal costs.
Justice L Windell, commenting on Gijima’s application, concluded: “Gijima and AVS are the only entities that satisfy the tender requirements. They are the only entities authorised to service and maintain the specific NEC and Mitel models…and they are also authorised to service and maintain the remaining models covered by the tender (other NEC and Ericsson models, as well as Siemens).
“There was ample evidence at its disposal to demonstrate that In2IT did not comply with the requirements of the tender. SITA should then have excluded In2IT from further evaluation. Ultimately, that being the case, the comparative price of Gijima and In2IT is irrelevant to the outcome of this review.”
SITA and In2IT contend that Gijima is a disgruntled unsuccessful bidder trying to “abuse its monopoly to hold the government to ransom”.
SITA assessed the bidders’ bid prices, and found there was a substantial difference in price – Gijima’s bid price was approximately R160.3 million, whereas In2IT’s bid price was approximately R88.9 million.
This amounted to a difference of 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 approximately R40 million (33.61% more than SITA’s budget). Hence, it was only logic for SITA to appoint In2IT as the service provider, stated SITA and In2IT.
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.
Says Gijima: “We note that In2IT has indicated it intends to apply for leave to appeal this judgement, notwithstanding that it has grossly failed to comply with the tender bid requirements and therefore makes a mockery of the judiciary.
“An application for leave to appeal is not an automatic right granted to a party wishing to appeal a judgement (fait accompli) and In2IT would therefore have to convince the court that its failure to comply with the mandatory tender bid requirements was not material in terms of procurement laws. SITA, on the other hand, has to comply with the PFMA [Public Finance Management Amendment Act] and procurement laws in respect of its mandatory requirements of the tender.
“SITA has been ordered by the judge that it has 30 days within which to engage with Gijima to conclude a memorandum of agreement, reflecting the terms.”
Gijima group CEO Maphum Nxumalo says: “We are pleased with the judgement, as it confirms that in terms of the services required, we were the only bidder, together with our partner AVS, that satisfy the tender requirements.
He adds the judge further indicated that: “In2IT did not comply with the mandatory requirements and the implication is that In2IT should have been treated as non-responsive. As only one compliant bidder remains, namely Gijima, it is submitted that the court is in as good a position as the decision-maker to make a decision.”
Correction:
The article earlier quoted Justice Windell rather than to quote Gijima from paragraph 14.
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