TMT Services & Supplies (Pty) Ltd v City of Johannesburg Metropolitan Municipality and Another

The City of Johannesburg advertised a three-year tender for advanced law enforcement and crash management services. The applicant, TMT Services & Supplies (Pty) Ltd, was a previous service provider and one of three bidders. During the compulsory briefing, the applicant requested traffic infringement volume statistics. The City refused to provide this information, considering it irrelevant under the new operating model, which involved a fixed monthly fee rather than remuneration per infringement. The applicant nevertheless submitted a bid but was disqualified by the Bid Evaluation Committee for failing to submit certified ICASA licence certificates for its equipment, rendering its bid non-responsive. A second bidder was disqualified for the same reason. Syntell (the second respondent) was the only compliant bidder and was awarded the tender valued at approximately R177.1 million. The applicant claimed it only learned of the award from a newspaper report in December 2022, despite the adjudication having occurred in public. The applicant sought to review and set aside the award, principally on the grounds of unfairness due to the non-disclosure of traffic infringement statistics.

• Whether the City's refusal to provide traffic infringement volume statistics rendered the tender process procedurally unfair under PAJA and section 217 of the Constitution.
• Whether a bidder who participates in a tender without challenging its alleged unfairness can subsequently raise that unfairness as a ground of review after the award goes against it.
• Whether the applicant's failure to challenge the tender specifications or process before submitting its bid constituted grounds to dismiss the review application.
• Whether Syntell's ICASA licence certificates had been properly certified and whether the tender was correctly awarded.

The application for review of the City of Johannesburg's decision to award tender A907 to Syntell was dismissed. The applicant was ordered to pay the costs of the application, including costs of two counsel where employed, save that the first respondent (the City) was ordered to pay the costs of the striking out applications lodged by both the applicant and the second respondent due to the City's initial failure to file a proper rule 53 record.

Where a bidder considers that the terms, specifications, or basis of a tender are unlawful, unfair, irrational, or unreasonable, it must challenge those terms at the time the tender is advertised, before the process unfolds. A bidder may not participate in the tender process, acquiesce in the alleged unfairness, and then raise the unfairness as a ground of review after the tender has been awarded to a competitor. This principle ensures that fairness operates reciprocally and promotes the constitutional values of transparency, cost-effectiveness, competitiveness, and equitableness under section 217 of the Constitution.

The court expressed doubt about whether the applicant truly required the infringement volume information, noting that its bid price was only 7.6% more than Syntell's despite not having the data, which indicated 'very accurate pricing'. The court also noted that annual traffic infringement statistics were publicly available from the Road Traffic Infringement Agency (RTIA), and the applicant did not explain why it had not obtained these figures from those reports.

This judgment provides authoritative guidance on the timing of challenges to alleged unfairness in public procurement. It establishes that bidders must raise objections to tender specifications or processes at the time of advertisement rather than waiting until after an adverse award. The decision reinforces the reciprocal nature of fairness in tender processes and promotes judicial efficiency by discouraging post-award litigation based on pre-existing grievances that could have been resolved before bids were submitted and evaluated.