Head of Department, Mpumalanga Department of Education v Valozone 268 CC and Others

In August 2013 the Head of the Mpumalanga Department of Education invited bids for a public tender (EDU/069/13/MP) to implement and manage the National School Nutrition Programme across eight municipalities. The tender was awarded to seventeen service providers, including the eighth respondent, while the first to seventh respondents were unsuccessful. They successfully reviewed and set aside the award in the High Court due to procurement irregularities, and the matter was remitted for reconsideration. During reconsideration, the Bid Evaluation Committee identified possible administrative irregularities in a small number of bids and recommended that the tender be cancelled and re-advertised to avoid potential litigation. On 23 June 2014 the appellant cancelled and re-advertised the tender and appointed the previous service providers on month-to-month contracts. The unsuccessful bidders challenged this cancellation decision.

The appeal was dismissed with costs. The SCA amended the High Court’s order by directing the appellant to consider and adjudicate all qualifying bids, in accordance with the tender’s evaluation methodology, within 30 days, and removed the requirement to report back to the respondents.

The case affirms strict compliance with regulation 8(4) of the Preferential Procurement Regulations and clarifies that public tenders may only be cancelled on the limited statutory grounds provided. It reinforces constitutional procurement principles of fairness, transparency, and rationality under section 217 of the Constitution and PAJA, and confirms that fear of potential litigation is not a lawful basis to cancel a tender.