Aventino Ecotroopers Joint Venture and Others v The MEC for the Department of Roads and Transport, Gauteng Province and Others

In May 2021, the Department of Roads and Transport, Gauteng Province published two tenders (Tender 19 and Tender 21) for routine road maintenance on provincial roads. Aventino Ecotroopers Joint Venture submitted bids and was ranked first by the Bid Evaluation Committee (BEC). The tender validity period was 120 days from the closing date of 30 July 2021, with five extensions sought. In August 2022, the Head of Department disqualified Aventino's bids on the basis that it was to be listed as a restricted supplier and serious fraud allegations had been made against it. These allegations arose from an earlier Limpopo tender where the Special Investigating Unit (SIU) found that Aventino made material misrepresentations to secure that contract, leading to a Tribunal order setting aside that contract and ordering full restitution. The tenders were awarded to the second and third respondents. Aventino sought to review these awards in the High Court, which dismissed the application. Leave to appeal to the Supreme Court of Appeal was granted on petition.

• Whether the tender validity period had lawfully been extended, or whether the tenders had lapsed
• Whether bidders who failed to respond to invitations to extend the tender validity period could be disqualified while the Department proceeded with bids from bidders who agreed to the extension
• Whether all bidders must be invited to extend the tender validity period for a valid extension
• Whether Aventino was unlawfully disqualified from bidding despite being the highest-scoring bidder
• Whether the Department could lawfully exclude Aventino from consideration based on findings by the SIU and a Tribunal settlement relating to a prior tender, in the absence of listing on the Treasury restricted suppliers list at the time of the decision

The appeal was dismissed with costs, including costs of two counsel where so employed.

1. Supply chain management policies adopted under section 38 of the Public Finance Management Act 1 of 1999, which form part of the legislative framework applicable to tenders, may validly provide that bidders who decline or fail to respond to invitations to extend tender validity periods may be excluded from further assessment, allowing the procurement process to continue with bids from bidders who agreed to the extension. 2. A tender validity period may be lawfully extended where the Department invites bidders to extend before expiry of the period, and proceeds to assess bids only from those bidders who accept the extension, provided this process is authorized by applicable supply chain management policies. 3. A public body may lawfully exclude a bidder from tender consideration based on credible evidence of serious malfeasance (such as material misrepresentations) in prior tenders, even in the absence of a final finding of guilt or formal listing on the Treasury restricted suppliers database, where such evidence includes findings by statutory investigative bodies and acknowledgements in settlement agreements before tribunals.

The Court observed that the exclusionary provision in paragraph 4.14 of the SCM Policy is 'not free of all ambiguity', particularly regarding what occurs when a bidder does not respond to a request to extend the validity period. The Court noted that bidders may have good commercial reasons not to permit their bids to remain in place, such as increased costs or changed circumstances. The Court commented that the settlement before the Tribunal, where Aventino agreed to have the contract set aside and make full restitution without express acknowledgement of fraudulent or wilful misrepresentation, 'does not however vindicate Aventino'. The judgment also observed that the Treasury's removal of Aventino from the restricted suppliers list was based on procedural rather than substantive grounds, and did not amount to an acknowledgement that the listing was substantively unwarranted.

This case clarifies important principles regarding tender validity period extensions and bidder disqualification in South African public procurement law. It confirms that public bodies may adopt supply chain management policies under section 38 of the PFMA that permit exclusion of non-responsive bidders from further consideration when extending tender validity periods. The case also establishes that public bodies may lawfully exclude bidders based on evidence of serious malfeasance in prior tenders, even where formal sanction processes (such as Treasury listing or tribunal guilt findings) are incomplete or pending. The judgment reinforces the principle that the constitutional and legislative procurement framework disciplines the powers of public bodies, and that procurement decisions must be viewed within this framework. It provides guidance on the interpretation of tender conditions and supply chain management policies, and the evidential basis required for excluding bidders on integrity grounds.