Abstract
In recent years, bidders aggrieved by municipal tender awards are increasingly resorting to Section 62 of the Local Government: Municipal Systems Act[1] for relief. The application of this provision to tender processes is however strictly confined, and in most instances bidders find that they have no option but to approach the courts for the judicial review of tender awards. In this article, the application of Section 62 to a municipality’s tender processes and decisions is critically analysed in the light of recent court judgments. Attention is also given to the relation between Section 62 and dispute resolution procedures in place under the Supply Chain Regulations,[2] enacted under the Local Government: Municipal Finance Management Act.[3] It is argued that at present, internal appeal and dispute resolution processes do not afford unsuccessful bidders adequate protection.
Highlights
The Supreme Court of Appeal in CC Groenewald v M5 Developments1 recently held that the unsuccessful bidders in that case had a right, under Section 62 of the Local Government: Municipal Systems Act,2 to appeal the municipality's decision to award a tender
Since the appeal authority in some of the cases was the accounting officer or municipal manager of the municipality, the article will clarify the role of municipal managers in bid processes, and in particular, their role with respect to bid adjudication committees (BAC)
Regard will be had to the dispute resolution procedures in place under the Municipal Supply Chain Management Regulations3 enacted under the Local Government: Municipal Finance Management Act4 and their relation to Section 62 of the Municipal Systems Act
Summary
The Supreme Court of Appeal in CC Groenewald v M5 Developments recently held that the unsuccessful bidders in that case had a right, under Section 62 of the Local Government: Municipal Systems Act, to appeal the municipality's decision to award a tender. The aim of the article is to demystify the application of Section 62 of the Municipal Systems Act to municipal tender awards. Attention will be given to the role that municipal managers play in bid processes, with particular reference to final awarding of a contract. The relevant parts of the Regulations will be analysed, as well as their relation to Section 62 of the Municipal Systems Act. Throughout the article, an attempt will be made to clarify the role of municipal managers in appeal and dispute resolution processes
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