Westinghouse Electric Belgium Société Anonyme v Eskom Holdings (SOC) Ltd and Another

Eskom Holdings SOC Ltd, an organ of state, invited tenders for the replacement of six steam generators at the Koeberg nuclear power station, a project valued at approximately R5 billion. Only two bidders qualified: Westinghouse Electric Belgium Société Anonyme and Areva NP Incorporated in France. The tender criteria were fixed and weighted, focusing on technical compliance, price, and supplier development and localisation (SD & L). After a lengthy evaluation and negotiation process, Eskom’s internal committees repeatedly recommended awarding the tender to Westinghouse, which submitted a cheaper bid. However, the Eskom Board Tender Committee (BTC) ultimately awarded the tender to Areva, relying on so‑called “strategic considerations” and a three‑month schedule buffer (“float”) in Areva’s bid, neither of which formed part of the published tender criteria. Westinghouse sought to review and set aside the award under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The High Court dismissed the review. Westinghouse appealed to the Supreme Court of Appeal.

The appeal was upheld and the cross‑appeal dismissed. The High Court’s order was set aside. The decision of Eskom’s Board Tender Committee dated 12 August 2014 was reviewed and set aside, and the matter was remitted to Eskom for reconsideration in terms of section 8(1)(c)(i) of PAJA. Eskom was ordered to pay costs, including the costs of three counsel.

This case is a leading authority in South African public procurement law, reaffirming that organs of state must evaluate tenders strictly in accordance with the published criteria. It underscores that fairness and transparency are substantive requirements, not mere formalities, and that undisclosed or extraneous considerations—however rational or commercially attractive—render procurement decisions unlawful. The judgment strengthens judicial oversight of tender processes and applies Constitutional Court principles from Allpay to complex, high‑value procurement.