Nyekile One Penny Half Penny (Pvt) Ltd v Parirenyatwa Group of Hospitals and Surdax Investments (Pvt) Ltd

In 2016, the 1st respondent (Parirenyatwa Group of Hospitals) floated an Informal Tender No. CLE 01/2016 for provision of cleaning services. Nine bids were lodged. The applicant's bid was rejected during preliminary assessment because it did not state payment terms as required by item 14 of the evaluation criteria. During evaluation, it was noted that all bid prices exceeded the annual threshold of US$500,000 set out in Procurement (Amendment) Regulations 2015. As a result, the 1st respondent referred its recommendations to the State Procurement Board for review in terms of section 21 of SI 126/2015. The State Procurement Board directed that the tender be awarded to the 2nd respondent (Surdax Investments) as the lowest bidder to specification. The applicant, as an unsuccessful bidder, sought to review this decision on grounds that the 1st respondent did not comply with procurement laws and that the decision was irrational.

• Whether there was material non-joinder of the State Procurement Board as a necessary party
• Whether the informal tender process was a nullity for exceeding the informal tender threshold
• Whether the State Procurement Board had authority under section 21 of SI 126/2015 to review and validate an informal tender that exceeded the threshold
• Whether the rejection of the applicant's bid for non-compliance with payment terms was irrational, biased, or malicious
• Whether non-compliance with tender specifications can be cured by interpretation

The application for review was dismissed with costs.

1. Rule 87 of the High Court Rules 1971 prevents non-joinder from being fatal; a party must have a direct and substantial interest in the subject matter, not merely a financial interest, to be a necessary party. 2. Section 21 of SI 126/2015 provides the State Procurement Board with authority to review informal tenders and validate them even where they exceed informal tender thresholds, effectively converting them to formal tenders. 3. Procurement committees act as umpires and cannot add words, supplement bids, or search for meaning where tender specifications are not precisely met. 4. A decision can only be set aside on review for irrationality if it is so grossly unreasonable that no reasonable person applying their mind to the facts would have reached that conclusion.

The court observed that the procedure complained of by the applicant did not prejudice it, as the manner in which the tender was issued and subsequently converted had nothing to do with the reasons why the applicant's bid was rejected. The court also noted that allegations of bias, corruption, and malice were "a red herring" and that the applicant betrayed itself by raising irrelevant allegations about previous refusals. The court commented that the applicant's prayer to be awarded the tender as the "lowest bidder" was baseless because the 2nd respondent was in fact the lowest bidder.

This case is significant in Zimbabwean public procurement law as it clarifies the authority of the State Procurement Board under section 21 of SI 126/2015 to review and validate informal tenders that exceed monetary thresholds, effectively converting them to formal tenders. It establishes that non-joinder is not fatal where the absent party has no direct and substantial interest in the relief sought. The judgment also reinforces strict compliance with tender specifications and the principle that procurement committees act as umpires who cannot supplement or interpret ambiguous bid submissions. It affirms the high threshold for review of administrative decisions on grounds of irrationality.