Eskom to appeal 'insensible' judgment against R16bn boiler maintenance tender

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Eskom is appealing an order to redo a tender for boiler maintenance at its coal-fired power stations.
Eskom is appealing an order to redo a tender for boiler maintenance at its coal-fired power stations.
Photo: Waldo Swiegers/Bloomberg
  • The North Gauteng High Court in Pretoria set aside a R16 billion contract for Eskom's boiler maintenance last month. 
  • The application was brought by bidder Babcock Ntuthuko Engineering, which was disqualified over missing paperwork. 
  • Eskom now wants the judgment overturned. 
  • For more financial news, go to the News24 Business front page.

Eskom is to seek leave to appeal an order by a court last month that ruled it must go back to the drawing board on its R16 billion tender for boiler maintenance after one of the bidders was disqualified. 

The court gave Eskom six months to run a new process, during which time the winning bidders would continue to service Eskom to avoid a disruption. 

The initial application was brought by Babcock Ntuthuko Engineering, one of three companies that have serviced Eskom's coal-fired power stations since 2016. A new tender process was begun in 2019 and finalised in October last year. However, Babcock was disqualified for failing to include an ISO 38234 welding certificate in the documentation for the bid. 

The contract was split between the other two bidders Actom and Steinmuller.

In October, Babcock took Eskom to court and successfully argued that the tender documents had been ambiguous, and it wasn’t clear that an actual copy of the certificate was required. Babcock also argued that as it was already an Eskom service provider, the power utility had the ISO 3834 certificate in its possession. 

In finding in Babcock's favour the North Gauteng High Court in Pretoria stressed that there was no evidence of wrongdoing. 

READ | Court orders Eskom to scrap R16bn tender after dropping bidder over paperwork

Eskom has requested access to the Supreme Court of Appeal, arguing that the tender documents were not ambiguous and other bidders understood clearly the need to submit the certificate. In its papers Eskom says: 

To read the ISO pre-condition as not requiring the submission of an actual certificate would lead to an insensible result: a simple declaration by a bidder that it was certified, even if it actually was not, would qualify a bid for further evaluation and award of the tender.

Eskom also says that the court's decision to allow six months for rerunning the process was unrealistic and that it had specified at the time that this would take a minimum of 22 months to redo. 

Eskom wants the high court ruling overturned and costs awarded against Babcock.

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