Roads Authority of Namibia v The Chairperson: Public Procurement Review Panel & others (HC-MD-CIV-MOT-REV-2022/00437) [2024] NAHCMD 33 (6 February 2024)
Facts
On 16 September 2021, the applicant (Roads Authority of Namibia) advertised tenders for routine maintenance of bitumen roads for the five areas namely: Windhoek; Keetmanshoop; Otjiwarongo; Oshakati and Rundu. The third to sixth respondents submitted various bids regarding the advertised regions and were unsuccessful for different reasons. Disenchanted with the reasons provided by the Roads Authority for rejecting their bids, the third to sixth respondents launched a review application before the second respondent (the Public Procurement Review Panel). The Roads Authority only learned of the fourth respondent’s (Palladium Quarry & Civil Works) review application on the day of the hearing, as it did not receive any application from them, and neither was the Palladium’s application part of the review record dispatched by the Review Panel.
On 3 June 2022, the review application was heard. The Review Panel decided on the review application, on the same date. The reasons were only released on 13 July 2023. The Review Panel found, inter alia, (a) the grounds on which the fourth respondent’s bid was disqualified was invalid; (b) that the application for bids in question was above the threshold and it is contrary to Regulation 2(2) of the Public Procurement Regulations. The Review Panel found that the contract value of each of the five bids was above the threshold of Thirty-Five Million Namibian Dollars as prescribed by Regulation 2(1) read together with Annexure 1 of the Public Procurement Regulations; (c) The Review Panel then found that the bids were beyond the Road Authority’s threshold and must be handed over to the Central Procurement Board of Namibia. In the end, the Review Panel ordered that the procurement proceedings be set aside and should start de novo.
The Roads Authority of Namibia launched a review application in the High Court. In its application, the Roads Authority applicant averred, as grounds of review, that the Review Panel determined the application of the fourth respondent in contravention of Regulation 42 of the Public Procurement Act, 15 of 2015 (the Act). The Roads Authority further averred that, the finding by the Review Panel, that the bids exceeded the N$35 million threshold was ultra vires its powers as it was not an issue before it for determination. The third respondent opposed the application and raised a point in limine of non-joinder of the unsuccessful bidders to this review application. The third respondent submitted that the Review Panel did not err in finding that the applicant had not complied with the provisions of the Act in so far as the threshold was concerned.
Issues for determination
The issues for determination before the High Court were, in summary, the following:
(a) Non –joinder;
(b) The fourth respondent’s failure to comply with Regulation 42; and
(c)The Review Panel’s finding that the bids were beyond the applicant’s threshold (exceeding N$35 million) in the Public Procurement Regulations and terminating the process and ordering the process to start afresh.
Determination
NDAUENDAPO J heard the application and considered it as follows:
Discussion
As to the point in limine of non-joinder of unsuccessful bidders, the court stated that the legal position of non-joinder in review applications is well settled as per the authorities (case law):- Mavara v Shapwa (HC-MD-CIV-MOT-GEN 181 of 2021) [2021] NAHCMD 603 (10 June 2021); Stellmacher v Christiaans and Others (APPEAL 170 of 2007) [2008] NAHC 2 (21 February 2008).
‘[80] ... under the PPA, an unsuccessful bidder has an internal remedy of review before the second respondent .If the unsuccessful bidder does not exercise that internal remedy of review or if joined to the review application by any other aggrieved bidder before the second respondent and does not participate, then in my respectful view, the aggrieved bidder (unsuccessful bidder) has waived the right to be joined in subsequent review application to the high court.’
In the result, the point in limine was refused.
‘[82] I now turn to the first ground of review, non-compliance with Regulation 42. It is common cause that the fourth respondent’s application for review before the second respondent was not served on the applicant or on the other respondents. It is also not in the record dispatched by the first and second respondents in terms of r 76 (2) (b), nor was such a copy produced in these review proceedings.
‘[85] The use of the word ‘must’ in the above provisions is a clear indication that those provisions are peremptory. In Green Enterprise Solutions (Pty) Ltd v Chairperson of the Public Review Panel (HC-CIV-MOT-REV-2020/00235) [2021] NAHCMD 478(14 Oct 2021), the court pronounced itself on s 55(5) as follows:
‘[23] This provision is clear and mandatory. Once the bidders have been notified about the successful bidder, they are given a stand-still period of 7 days within which to launch a review application. Should this not be done within that period, the accounting officer must award the contract to the successful bidder. This is couched in peremptory terms. . .
[25] The 1st respondent was in no position to consider the application for review. Strictly speaking there existed no application for review before it. This is so because the mandatory period within which the aggrieved bidders were to lodge their application had lapsed and none of the bidders lodged any review application. I find that this ground raised by the applicant is eminently meritorious.’
The court went on to discuss the ultra vires doctrine with reference to Ngavetene and Others v Minister of Agriculture, Water and Forestry and Others (HC-MD-MOT-CRT-2017/00316 delivered 26 November 2018); Immanuel v Minister of Home Affairs and Others (PA 315 of 2005) [2006] NAHC 30 (28 August 2006) and stated that:
‘[89] By entertaining the fourth respondent’s review application in contravention of the mandatory provisions of s 59 and Regulation 42, the second respondent acted ultra vires its power conferred on it by law. This court can therefore review and set aside that decision and regard it as invalid.’
As to the ground that the bids were above Road Authority’s threshold, the court stated that such was not before the respondent for determination, nor raised by any party to the review application. It was determined mero motu by the second respondent.
Regulation 44 provides that:
‘The proceedings before the Review Panel are conducted in such a manner as the Review Panel considers most suitable to resolve the issues before the Review Panel. . .
‘As stated above, the issue of the threshold was not before the second respondent for determination.’ (My emphasis)
[91] In Green Enterprise Solutions (Pty) Ltd v Chairperson of the Public Review Panel Masuku J In dealing with “issues” before the second respondent, said the following:
‘[27] I now turn to deal with the first ground of review that was upheld by the 1st respondent. It is common cause that the 1st respondent, when determining an application for review, is confined to the papers that are before it. It is improper for a panel to raise or deal with issues that are not placed before it. Neither the 4th nor 5th respondent raised the ground for review which the 1st respondent found competent to uphold. On this score I find that the 1st respondent acted ultra vires when it mero motu raised and decided upon grounds not within the confines of the papers before it.’
[92] By dealing with and determining an issue which was not raised in the papers before it, the second respondent acted ultra vires its powers and for that reason alone the decision of the second respondent cannot stand.
[93] Another reason why the decision of the second respondent cannot stand on the issue of the threshold is that the second respondent based its decision on irrelevant considerations and not based on material facts before it.
[97] From the above-quoted provisions, Mr Nekwaya correctly submitted that it is clear that the threshold ceiling is defined with reference to the contract amount and not the entire bidding process. The bids were for ‘works,’ and the threshold is N$35 million in Annexure 1 of the Public Procurement Regulations.
[99] In casu, the erroneous interpretation of the term threshold amounted to a mistake of law and is similarly reviewable.
[100] One matter remains. The second respondent found that the applicant failed to comply with the seven-day notice period as it included two public holidays and a Sunday. On 23 May 2022, in its Notice of Selection Award, notified the bidders who were aggrieved by the selection award to apply for review before the second respondent within seven days period, the period which stretched from 24 May 2022 to 30 May 2022.The period between 24 May to 30 May amounts to seven days. This period excludes the day the Notice of Award was issued (23 May 2022). The finding by the second respondent that the period was less than seven days because it included a Sunday, and a public holiday is simply wrong. In terms the Interpretation of Laws Proclamation 37 of 1920, s 4 provides as follows:
‘When any particular number of days is prescribed for the doing of any act, or for any other purpose, the same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day shall happen to fall on a Sunday or on any other day appointed by or under the authority of a law as a public holiday, in which case the time shall he reckoned exclusively of the first day and exclusively also of every such Sunday or public holiday.’
[101] Section 4 of South Africa’s Interpretation Act 33, which is similar to our section 4, was interpreted as follows, in S v Kashire 1978(4) SA 166 (SWA) at 167F-G:
‘The days mentioned in this section must surely be computed with reference to s 4 of the Interpretation Act 33 of 1957, i.e. inclusive of Saturdays, Sundays and public holidays but exclusive of the first day and inclusive of the last day.’(My underlining)
[102] In light of the above, it is clear that the prescribed days include Sundays and public holidays. The interpretation and application of computation of ‘days’ adopted in Kashire was endorsed by Parker J (as he then was) in S v Paulo and Another [2011] NAHC 65 (10 March 2011).
[103] The finding by the second respondent was clearly an error in the interpretation and computation which this court can review and set aside. It is therefore submitted that the finding by the second Respondent is a reviewable error as it is premised on the wrong interpretation and application of computation of days.
Conclusion
[104] It is clear that the second respondent acted ultra vires the provisions of the relevant provisions of the PPA and regulations when it mero motu determined that the applicant’s bids were above the threshold and annulled the bidding process. The decisions of the second respondent are therefore liable to be reviewed and set aside. Accordingly the application must succeed.’
It was therefore held that:
By not bringing a review application before the second respondent or by failing to participate, when joined in the review application before the second respondent, the unsuccessful bidders waived their right to be joined in a subsequent review application to the high court.
Held further that by dealing and determining the issue of the threshold mero motu, the second respondent acted ultra vires the powers conferred on it by law and this court hereby reviews and sets aside that decision.
Consequently, the court made orders dismissing the point in limine, setting aside decisions if the Review Panel, validating the outcome of Roads Authority’s bid evaluation process, and permitting Roads Authority to proceed with the concluding and signing of procurement contracts with the successful bidders.
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