1 The applicant (“Siemens”) competed, unsuccessfully, for a 36-month contract to perform control and instrumentation maintenance (“the work”) at Camden Power Station in Mpumalanga. The work was put out to tender by the first respondent (“Eskom”). In the end, Eskom chose to award the work to the second respondent (“Senta Square”).
2 The issue in this application is whether Eskom did so pursuant to a lawful tender process. That tender process commenced on 18 September 2018, when Eskom issued an invitation to tender to undertake the work for the 36 months between 1 March 2019 and 28 February 2022. At that time, Siemens had been carrying the work out on Eskom’s behalf for at least 12 years, having itself successfully tendered for the work on four previous occasions.
3 However, at the first stage of the tender process initiated on 18 September 2018 (“the first tender process”), Siemens, together with everyone else who responded to that tender, was disqualified after failing to achieve an adequate technical evaluation score. The reason for Siemens’ low technical evaluation score was apparently that the majority of the documents presented to certify Siemens’ technical capacity were not themselves certified as true copies of the originals
4 Ostensibly on the basis that no-one was able to meet its technical evaluation criteria, Eskom cancelled the first tender process. On 9 November 2018, it started the process afresh by reissuing an invitation to tender in substantially the same terms as the invitation that initiated the first tender process.
5 Siemens tendered again. This time, it attained a high score at the technical evaluation stage, but was nonetheless disqualified again, apparently because it failed to demonstrate that it had met the “prequalification criteria” specified in the invitation to tender. It is the nature, meaning, and application of these criteria that lie at the centre of this case.
6 Siemens having been disqualified, the work was eventually awarded to Senta Square. Senta Square commenced the work on 1 March 2019. Its contract for the work expires on 28 February 2022.
7 In its founding affidavit, Siemens launched a wide-ranging attack on every stage of the tender process. It sought to review its disqualification from the first tender process (“decision one”), the cancellation of the first tender process (“decision two”), and its disqualification from the second tender process (“decision three”).
8 By the time the matter came before me, however, Siemens had abandoned its attack on decisions one and two. Mr. Wasserman, who appeared for Siemens, instead focussed his fire on decision three.
9 Decision three was assailed on essentially two grounds. The first was that the prequalification criteria which Eskom said Siemens had failed to meet were not, in fact, prequalification criteria at all, or had, at the very least, been wrongly applied if they were. The second ground was that Senta Square had been unfairly advantaged in the second tender process, because its technical score (which was initially very low, and, in any event, much lower than Siemens’ score) was irrationally adjusted upwards after it emerged as the strongest performer on various Broad-Based Black Economic Empowerment (“B-BBEE”) criteria, against which the parties’ bids were also evaluated.
10 On the view I take of this case, it is only necessary for me to address Siemens’ first ground. It is, accordingly, to the nature and application of the prequalification criteria in the second tender process that I now turn.