South African National Roads Agency Limited v The Toll Collect Consortium and Another

SANRAL invited tenders for the operation of the N2 South Coast Toll Plaza. Four bidders submitted tenders. The tender documents provided for a two-stage evaluation: first, a quality assessment out of 100 points with a minimum threshold of 75 points, failing which the tender would be disqualified; second, an assessment based on price, BEE and other considerations. The Toll Collect Consortium’s tender failed to reach the 75-point quality threshold, scoring 64.49 points, and was disqualified at the first stage. The contract was awarded to Tolcon Lehumo (Pty) Ltd. The Consortium instituted review proceedings in the KwaZulu-Natal High Court, challenging the award on the basis that the quality evaluation was not transparent or objective because SANRAL had not disclosed the detailed breakdown of scoring within the quality criteria. The High Court upheld the review and ordered a reconsideration of the tenders. SANRAL appealed to the Supreme Court of Appeal.

The appeal was upheld with costs, including the costs of two counsel. The order of the KwaZulu-Natal High Court was set aside and replaced with an order dismissing the review application with costs.

The case clarifies the content of the constitutional requirements of transparency and objectivity in public procurement under section 217 of the Constitution. It confirms that organs of state are not generally required to disclose detailed internal scoring methodologies in advance, provided that the evaluation criteria and required information are adequately disclosed. The judgment underscores the necessity of pleading and proving prejudice in procurement reviews and cautions against setting aside public contracts for inconsequential or technical irregularities.