Raubex vs Prasa fails
BRIDGE: INTERDICT TO CHALLENGE TENDER
Court remarked on company’s tardiness in ‘urgent’ application.
Raubex Construction, part of the JSE-listed construction group Raubex, has failed in its attempt to challenge the award by the Passenger Rail Agency of South Africa (Prasa) of a tender to a contractor for the demolition, design and construction of a new railroad bridge in Boksburg.
Raubex applied to the High Court in Johannesburg for an urgent interim interdict to prevent Prasa from implementing the 10-month tender contract.
The application was heard on 29 November, 2023 by Judge N Redman, who dismissed the application with costs and struck the case from the urgent roll because he was not satisfied that Raubex had established that the matter should be dealt with on an urgent basis.
In the judgment handed down last month, Redman said before an urgent court makes a finding on the merits of an application, it must be satisfied that it should be dealt with on the court’s urgent roll and that the applicant will not be afforded substantial redress at a hearing in due course.
The merits of Raubex’s challenge of the tender award were not considered by the court. Comment was requested from Raubex on Tuesday on whether it planned to appeal the judgment but a response has not yet been received.
The merits
Raubex’s legal challenge followed Prasa awarding the tender to Re A Letamisa Trading & Projects CC, whose tender price was R30 million higher than that submitted by Raubex Construction.
The tender was awarded to replace the bridge destroyed by a gas explosion on Christmas Eve in 2022, which resulted in the deaths of more than 40 people.
The explosion was caused by a tanker transporting liquefied petroleum gas exploding after it became wedged beneath a bridge about 100 metres from the Tambo Memorial Hospital.
Raubex claimed it submitted a compliant and responsive tender when submitting a bid of R49 725 018 for the tender while Re A Letamisa Trading & Projects CC’s bid was R79 764 000.
It said the difference between the tenders is a staggering R30 038 981.65, which over the 10-month project period equates to a difference of R3 million per month.
It also appears that Re A Letamisa Trading & Projects CC was not registered with the Construction Industry Development Board (CIDB), which is a statutory requirement.
Construction Industry Development Board (CIDB) corporate communications director Kotli Molise confirmed to Moneyweb late last year that all contractors doing business with government must be registered with the CIDB and their registration is publicly displayed on its website.
Molise further confirmed she conducted a search but was unable to find Re A Letamisa Trading & Projects CC’s registration on the CIDB website. Attempts to obtain comment from Re A Letamisa Trading & Projects CC at the time were unsuccessful.
‘Urgency’ diluted
In his dismissal of Raubex’s application on the basis of a lack of urgency, Redman said Raubex on 6 October, 2023 obtained a copy of a letter dated 31 August, 2023 addressed by Prasa to Re A Letamisa Trading & Projects CC informing the close corporation that its tender of R79 764 000 for the project was successful.
Redman said that on discovering that the tender had been awarded to Re A Letamisa Trading & Projects CC, Raubex on 6 October addressed a letter to Prasa seeking copies of documents related to the tender award and the reasons for its decision.
The letter gave Prasa until 11 October to provide the record and reasons. “Despite being aware of the award, however, the applicant chose not to seek interdictory relief at that stage,” he said.
Redman said Raubex received the reasons for Prasa’s decision on 2 November, 2023 and “took eight days before launching the ‘urgent application’”.