Helios Security and Risk Management CC and Another v College of Cape Town and Others

The College of Cape Town invited tenders for security services for a 36-month period. Helios (First Applicant), the incumbent provider, and Sechaba (Second Applicant) submitted bids. The tender was awarded to a joint venture between Mthidhla Group VIP and Security and Sniper Security Solutions (Mthidhla-Sniper). The Applicants were not informed of the outcome and only learned of the award indirectly. Requests for reasons went unanswered. The Bid Evaluation Committee (BEC) disqualified 15 bidders, including the Applicants, for failing to provide documents not required by the tender specifications. The Bid Adjudication Committee (BAC) noted these irregularities, did not recommend any bidders, and referred the matter back to the College Principal. The BAC also identified concerns about Mthidhla-Sniper's financial stability. Despite this, the College Principal awarded the tender to Mthidhla-Sniper, dismissing the BAC's concerns about financial feasibility as 'outside of the requirement of the tender.' The College initially opposed the review but later withdrew its opposition and launched a counter-application for a self-review, seeking to keep the remuneration terms of the existing contract with Mthidhla-Sniper intact.

• Whether the Bid Evaluation Committee's disqualification of bidders on the basis of documents not required by the tender specifications rendered the procurement process reviewable.
• Whether the College Principal's decision to award the tender despite the BAC's concerns and contrary recommendations was procedurally fair.
• Whether the College's counter-application for a self-review was valid, given its withdrawal of opposition to the main application.
• Whether the College was entitled to relief preserving remuneration terms of the existing contract under section 172(1)(b) of the Constitution.
• Whether PAJA can be used by an organ of state for self-review of its own decisions.

1. The decisions and recommendations made by the First Respondent's Bid Evaluation Committee on 3 October 2023 in respect of Tender No. CCT042023 are reviewed and set aside. 2. The decision of the First Respondent's College Principal to award Tender No. CCT042023 to the Joint Venture between the Second and Third Respondents is reviewed and set aside. 3. The First Respondent is directed to appoint bid specification, bid evaluation, and bid adjudication committees in accordance with its supply chain management policy, with a view to re-advertising, adjudicating and awarding Tender No. CCT042023. 4. The First Respondent is directed to re-advertise Tender No. CCT042023 in accordance with its supply chain management policy. 5. The application for relief sought in prayer 4 of the counter-application is dismissed. 6. The First Respondent shall pay the Applicants' costs in respect of both the main and counter-applications on Scale A.

A public procurement decision is reviewable under PAJA where the evaluation committee considers irrelevant criteria not specified in the tender documents, and where the accounting officer awards a tender contrary to the recommendations of the Bid Adjudication Committee without proper justification, thereby failing to take relevant considerations into account. An organ of state seeking to preserve the terms of an unlawfully awarded contract after review and setting aside must place sufficient facts before the court to justify equitable relief under section 172(1)(b) of the Constitution; failing which the court cannot exercise its remedial discretion.

The court observed that the College's explanation for withdrawing its notice of opposition was unsatisfactory and difficult to reconcile with its decision not to file an answering affidavit. The inference that the withdrawal was linked to the decision to launch the counter-application was inescapable. The court also noted that PAJA is not available to organs of state as a vehicle for self-review, relying on State Information Technology v Gigima Holdings 2018 (2) SA 23 (CC), though it did not need to make a finding on this.

The case affirms that public procurement processes must strictly adhere to the constitutional principles of fairness, transparency, and competitiveness under section 217(1) of the Constitution. It reinforces that evaluation criteria must be clearly set out in tender documentation and that disqualification on undisclosed criteria is procedurally unfair. The case also clarifies that an organ of state cannot use PAJA for self-review of its own administrative decisions, and that a court's remedial discretion under section 172(1)(b) of the Constitution requires a proper factual foundation.