Prosec Guards CC v Department of Public Works and Infrastructure and Others

The applicant, a security services provider, sought to review and set aside decisions of the Department of Public Works and Infrastructure's bid evaluation and adjudication committees which disqualified it from two tenders. In tender CPT 9/22 for safeguarding and protection services, the applicant was disqualified for scoring less than the required 50% for functionality. In tender CPT 10/22 for tactical services, its bid was deemed non-responsive for failing to submit a valid National Bargaining Council for the Private Security Sector (NBC) registration certificate. The applicant challenged the disqualifications, arguing procedural unfairness, substantial compliance, and a duty on the tender authority to seek clarification.

• Whether the applicant's disqualification for failure to meet functionality criteria in tender CPT 9/22 was procedurally unfair or irrational.
• Whether the applicant's bid in tender CPT 10/22 was correctly deemed non-responsive for lack of a valid NBC registration certificate.
• Whether the tender authority had a discretion or duty to condone non-compliance with peremptory tender requirements.
• Whether the submission of alternative documents constituted substantial compliance with the tender specifications.

The applications in case nos. 2501/23 and 2502/23 are dismissed with costs, including the costs of two counsel where so employed.

Tender authorities have no inherent power to condone non-compliance with peremptory, material bid requirements unless expressly granted such discretion in applicable legislation or the tender documentation. Compliance is assessed by determining whether, viewed in light of the purpose of the condition, the bidder has done what was required. The submission of alternative documents that do not meet the specified form and substance does not constitute substantial compliance.

The court noted that the interpretation advanced by the applicant (allowing a letter of good standing to substitute for a registration certificate) would potentially permit unregistered bidders to be awarded security tenders, undermining fairness and the purpose of the registration requirement. It also observed that the applicant’s concession regarding administrative office non-compliance could not be retracted, and that even if the vehicle documentation defect were condoned, the applicant would still not have met the 50% functionality threshold.

This case reinforces the principle that material compliance with peremptory tender requirements is mandatory and that tender authorities generally have no inherent discretion to condone non-compliance. It clarifies that ‘substantial compliance’ is assessed with reference to the purpose of the requirement and endorses the Allpay, Moroka, and WDR Earthmoving line of authority, limiting the earlier Millennium Waste approach. The judgment also addresses the distinction between discretionary and mandatory tender conditions, and the limits of the bid authority’s duty to seek clarification.