The High Court in Pretoria set aside SANParks’ decision to award a 10-year tender to Gijima.
IT services firm Gijima is readying to file court papers to appeal the ruling that saw the company lose a R1 billion ICT tender, which had been awarded to it by South African National Parks (SANParks).
This, after the High Court in Pretoria recently reviewed and set aside SANParks’ decision to award a 10-year tender to Gijima.
The court found the tender process to be flawed and ruled in favour of rival Datacentrix, which had previously held the contract and challenged the recent award.
The court then ordered that Datacentrix continue to provide services to SANParks for a period of 12 months, under the same terms and conditions as the agreement concluded in February 2019.
Lawyers representing Gijima, Nicqui Galaktiou, told ITWeb that Gijima intends to apply for leave to appeal the judgement to the High Court of South Africa.
Gijima believes another court may come to a different conclusion, “as there are material errors and omissions that cumulatively give rise to appealable grounds”.
According to the company, the sole basis upon which Judge Mandlenkosi Motha upholds the application is based on what he deems as non-compliance by Gijima with tender requirements per SANParks’ request for bid (RFB), namely the failure to “provide a copy of the latest independently reviewed (or audited, where possible) annual financial statements/annual report for each entity that forms part of the bid”.
It adds that the annual report and the independently reviewed (or audited, where possible) annual financial statements (AFS) must be for the recent three years and submitted within the stipulated time frame.
In this regard, Gijima adds, Datacentrix had argued that Gijima failed to submit the AFS.
Datacentrix further argued that Gijima was required to submit audited AFS for three years, and that its 2021 statement could not be used as part of satisfying this requirement, because it was more than six months old.
Gijima notes that in support of its bid, it submitted its latest AFS and its financial information for 2022, and audited AFS for 2021 and 2020.
As a result, it adds, SANParks was able to assess the “commercial and financial soundness” of Gijima, per the purpose of the RFB’s requirement.
The company also argues that the judge incorrectly cites as a “coup de grâce”, the fact that SANParks had disqualified four other bidders for the same “infractions” it let slide with Gijima.
“In our view, Motha materially erred on this issue. The reality, as set out by SANParks, in fact is that the four other disqualified bidders were in completely different factual positions to Gijima (ranging from a failure to submit any audited statements at all, to submitting statements for only one year). Notwithstanding that this argument was made to the court, the judgement appears to ignore this explanation which differentiates Gijima’s circumstances to the other bidders’ non-compliance.
“More concerning, however, is Motha’s disregard and failure to acknowledge that Datacentrix itself faced challenges insofar as its AFS are concerned. There therefore appears, with respect, to be selective scrutiny of non-compliance which we are of the view can be argued amounts to a misdirection in law and fact. As you know, courts are enjoined to assess tender compliance with due regard to the principle of equality and fairness as enshrined in section 217 of the Constitution. This selective awareness and criticism, in our view, falls short of the standard required by the Constitution.”
Datacentrix also pointed out that Gijima’s bid lacked a staff member with a certification from the Linux Professional Institute, another mandatory requirement for the tender.
Gijima is now arguing that be that as it may, SANParks supported Gijima that it met this requirement, stating that what Gijima submitted for this requirement served the purpose of demonstrating its ability to meet SANParks’ requirements in respect of Linux.
The company also points out that Datacentrix’s bid price was R280 million more than Gijima: Gijima’s price being R980 037 813.77 and Datacentrix’s being R1 260 151 415.99.
“All in all, Datacentrix relied on strenuous interpretative arguments to attack Gijima’s bid submission which Motha unfortunately and incorrectly permitted as the true state of affairs. We thus remain of the view that the judgement is appealable on multiple grounds, each of which in our view has a reasonable prospect that another court may reach a different conclusion.
“The court’s selective treatment of compliance, failure to consider key technical issues and misunderstanding of factual context relating to pricing are not mere matters of discretion but rather significant misdirection in both law and fact.”
Meanwhile, Datacentrix is celebrating the judgement. Ahmed Mahomed, Datacentrix Group CEO, says: “We are pleased with the court’s decision, which we believe to be just and well-founded.
“We remain confident in the strength of our position and continue to trust that the legal process will uphold the principles of justice and the rule of law.”
