'Tenders should not be reserved for an exclusive club'

2012-04-11 00:00

PRETORIA — Government departments may not set tenders aside for an exclusive small group of companies.

This is the contention of the South African Federation of Civil Engineering Contractors (Safcec) in court papers before the KwaZulu-Natal High Court in Pietermaritzburg.

Safcec approached the court to set aside the decision by MEC for Transport, Community Safety and Liaison, Willies Mchunu and the departmental head of transport to exclude all tenderers not registered for the department’s Vukuzakhe programme for emerging contractors from two recent tenders.

Safcec asked for the respondents to be ordered to cancel the tender processes and start over again without the restriction, and to be prohibited from restricting tenders to the Vukuzakhe contractors in future.

Safcec executive director Neville Gurry said in a statement to the court that it is illegal to reserve work in this way, and against the Constitution.

He said the tender process must be particularly credible and must not deny the public the benefits of an open, competitive process.

Gurry said legislation provides for preferential procurement in that certain tenderers can be given a 10% or 20% advantage over and above price considerations, and further measures to exclude certain groups would be illegal.

He explained that the department established the Vukuzakhe emerging contractor development programme several years ago with the aim of developing a new group of contractors from previously disadvantaged communities to create jobs and prosperity.

There are about 50 black contractors on the Vukuzakhe database.

Gurry indicated that only a small number of emerging civil engineering contractors in KwaZulu-Natal who are registered with the Construction Industry Development Board (CIDB) are also on the Vukuzakhe database, and no new contractors are added to the latter.

“In short, it has become an exclusive club.”

At the insistence of its members who are being excluded from tender processes, Safcec tried to persuade the department to abandon the practice, but in vain. Gurry said that as far as he knows, the national treasury also informed the department that its actions are illegal and referred to a practice notice to government institutions regarding the matter.

Safcec is asking the court to intervene as a matter of urgency, since the department is continually advertising tenders, with the illegal practice therefore continuing uninterrupted.

Safcec members are excluded and the matter is in the interest of the whole construction industry.

Speedy intervention will also prevent the current two tenders from going ahead and the awards later having to be overturned, with accompanying costs.

Gurry is also asking the respondents to suspend the two tenders until the matter has been decided.

In 2009, under public pressure, S’bu Nedebele, currently the national minister of transport, returned a Mercedes Benz S500 worth R1,1 million, as well as two cows, he received from the Vukuzakhe contractors.

The gifts were in appreciation of R10 billion’s worth of contracts awarded to them over ten years as part of the Vukuzakhe programme instituted by Ndebele while he was KwaZulu-Natal transport MEC from 1994 to 2004.

The KwaZulu-Natal Department of Transport spokesperson could not be reached for comment.

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