Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and Another

The Industrial Development Corporation (IDC), an organ of state, invited tenders to upgrade its head office. Trencon Construction submitted a compliant and timely bid that scored the highest points on price and empowerment. Basil Read submitted its initial prequalification proposal 14 minutes late, but the IDC accepted it. Throughout the tender evaluation process, independent consultants and all IDC committees recommended Trencon as the preferred bidder. Despite this, the IDC’s Executive Management Committee (Exco) declared Trencon’s bid non-responsive, citing that its price was not fixed due to escalation linked to a delayed site handover, and awarded the tender to Basil Read. Trencon challenged this decision. The High Court set aside the award to Basil Read and substituted the decision by awarding the tender to Trencon. The Supreme Court of Appeal overturned the substitution and remitted the matter to the IDC. Trencon then appealed to the Constitutional Court.

Leave to appeal was granted; the appeal was upheld; the order of the Supreme Court of Appeal was set aside; the High Court’s order substituting the award of the tender to Trencon was reinstated (with minor deletions); and the IDC was ordered to pay Trencon’s costs, including costs of two counsel.

This judgment authoritatively clarifies the test for 'exceptional circumstances' under section 8(1)(c)(ii)(aa) of PAJA and confirms that substitution remains a viable remedy in procurement disputes where remittal would be unfair, pointless, or cause undue delay. It strengthens judicial oversight of unlawful tender awards and delineates the limits of appellate interference with remedial discretion.