Disgruntled tenderer dismissed as court paves way for Durban tradeport zone

2018-05-21 15:35
Dube Tradeport CEO Hamish Erskine. (Supplied)

Dube Tradeport CEO Hamish Erskine. (Supplied)

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A disgruntled tenderer, who lost out on a R500m contract for the expansion of Durban's Dube Tradeport, was given a judicial reprimand for making "spurious allegations" against the Dube CEO and the company which was given the contract.

"The affidavits and heads of argument are replete with nouns and adjectives designed to impugn the integrity of both... when it was obvious there was no impropriety," KwaZulu-Natal High Court Judge Graham Lopes said in his ruling handed down on Monday.

He dismissed the application brought by Aqua Transport and Plant Hire against Dube Tradeport, its CEO Hamish Erskine and Rokwil Pty Ltd. 

What this means is that the second phase of the trade zone – 15 hectares of industrial land in a special economic zone – can now go ahead.

"We are looking to get R10bn in private-sector investment," Erskine told News24.

"We believe in doing things the right way. This court case has set us back by 18 months. Now we intend to start work immediately. It is a huge relief. The whole organisation has a skip in their step today."

Top four bids reassessed

Aqua approached the court last year after it failed to score the lucrative 18-month contract for the construction of bulk earthworks. It wanted the tender award to Rokwil to be set aside and an order that all bids be reconsidered.

Evidence before Judge Lopes was that the bids were assessed in three phases and each bidder had to be approved in each phase in order to proceed to the next.

While Aqua advanced through each phase and was at one point the favourite for the tender, concerns were raised about whether it had the relevant experience and whether its construction programme was realistic.

The top four bids were then re-assessed and Rokwil eventually secured the contract.

Aqua lodged an appeal but this was dismissed. It then launched court proceedings.

While the company claimed that only its scores had changed during the re-evaluation process, Dube made it clear that all the surviving bidders were re-examined.

An outside consultancy firm had done a "technical risk review and assessment" on the bidders to establish risk. The concerns raised in respect of Aqua included that its core business was transport and plant hire and the project could put pressure on its cash flow. It was also found that it had not previously focused on construction work and its tender was "unbalanced".

Aqua ordered to pay costs

In his ruling, Judge Lopes said the involvement of the consultant did not indicate any impropriety in the process and, although bidders may not have known about it: "I would view this as a wise and considered decision on the part of Dube."

"There is nothing reviewable about its decisions," Lopes said.

He said while legal representatives of Aqua had apologised at the start of arguments about the allegations of impropriety that was not the end of the matter.

"It is both unfair and undesirable that reviews are brought to court on the basis of spurious allegations, without facts to back them up. 

"Those allegations led to this application... when matters became clearer and it was obvious there was no impropriety, the applicant continued nonetheless."

The judge said the papers were matters of public record and withdrawing the allegations at the outset of arguments "does not easily undo the taint of suspicion created".

He ordered Aqua to pay the costs of the application on a punitive scale "to express this court's disapproval".

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Read more on:    durban  |  tenders

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