Tecmed (Pty) Ltd v Eastern Cape Provincial Tender Board and Others

The Eastern Cape Provincial Tender Board invited tenders in September 1996 for the supply of a Bi-Plane Catheterisation Laboratory to the Port Elizabeth Provincial Hospital. Tecmed (Pty) Ltd submitted a tender which arrived after the stipulated closing time due to unforeseen industrial action that disrupted air transport, a delay not attributable to Tecmed. The Board’s secretariat failed to inform the Board that Tecmed’s tender was late, and the Board considered and ultimately awarded the tender to Tecmed in May 1997. S.A. Philips (Pty) Ltd, a competing tenderer, applied to the High Court to review and set aside the award on the basis that Tecmed’s tender was late and should not have been considered. The High Court set aside the award and ordered that Tecmed be excluded from any reconsideration of the tender. Tecmed appealed to the Supreme Court of Appeal.

The appeal was dismissed insofar as it challenged the setting aside of the tender award to Tecmed. The appeal succeeded insofar as it challenged the orders referring the matter back to the Board while excluding Tecmed from consideration. Those exclusionary orders were set aside. Each party was ordered to pay its own costs in respect of certain proceedings, including the appeal.

This case is a leading authority on administrative law and public procurement in South Africa. It affirms that tender boards must strictly comply with their empowering legislation and regulations, and that a failure to apply one’s mind to a relevant consideration renders an administrative decision reviewable and invalid. The judgment clarifies the proper approach to late tenders and underscores that courts should not usurp discretionary powers lawfully conferred on administrative bodies.