WDR Earthmoving Enterprises & another v The Joe Gqabi District Municipality & others

The Joe Gqabi District Municipality invited tenders for a construction project. WDR Earthmoving Enterprises, an unsuccessful tenderer, challenged the municipality’s decisions declaring its own tender non-responsive and awarding the tender to a competing bidder. The challenge was based on non-compliance with a peremptory requirement in the conditions of tender. Both WDR’s tender and the successful tenderer’s bid failed to comply with this requirement. Despite this, the municipality awarded the tender to the competing bidder. WDR appealed to the Supreme Court of Appeal after being unsuccessful in setting aside both decisions in the court below.

The appeal was upheld in part. The decision declaring WDR’s tender non-responsive was upheld. The decision to award the tender to the successful tenderer was reviewed and set aside. The municipality was ordered to recommence the tender process.

The case reinforces strict compliance with peremptory tender requirements in public procurement and affirms that organs of state have no discretion to condone material non-compliance. It underscores the constitutional and administrative law principles governing fairness, transparency and legality in municipal tender processes.