BRT tender was ‘unconstitutional’

THE awarding of Buffalo City Metro’s multi-million rand Bus Rapid Transit (BRT) system tender to a “loose arrangement” of companies was irrational, unconstitutional and unlawful, it was submitted to the Grahamstown High Court yesterday.

The BRT was put on hold in March pending yesterday’s court battle over BCM’s decision to award the massive tender to joint venture GOBA/

The tender was for a basket of comprehensive services to develop the BRT, ranging from project management, architecture and electronic engineering to marketing and communications.

Another consortium BKS – whose R54-million tender came in R17-million under GOBA/SSI/ALG’s R71-million tender – yesterday asked Judge Boni Sandi to review and set aside the decision to award the tender to its competitor and, instead, award it directly to them.

BKS Consortium has said in court papers the venture consisted of a group of consultants collectively able to provide the comprehensive services required for the development of the BRT.

But, despite being ahead in price and on points, BKS’s bid had not even reached the evaluation stage as the Bid Evaluation Committee (BEC) said it had not met the minimum requirements stated in the tender criteria.

BKS’s counsel Advocate Ben Ford, SC, yesterday argued this had been unfairly done.

The requirements included that they should have “successfully completed a minimum of two similar type and size of projects”, in each of the stipulated categories of work – either collectively or through one of its individual consortium members.

Ford said BKS had done so and had been culled by BCM on the basis of criteria not provided for in the advertised tender.

Members of the BKS joint venture had amply demonstrated it had expertise and prior experience in similar projects, he said.

Ford also submitted that on a proper assessment of the criteria it was in fact GOBA/SSI/ALG that had failed to meet the qualification criteria.

Advocate Torquil Paterson, SC, for GOBA/SSI/ALG admits in his heads of argument many members of the professional team were not employed by the joint-venture.

But, he said the “external entities” had committed themselves to working in association with the joint venture.

He said GOBA/SSI/ALG should be seen as bidding on behalf of the “entire professional team”.

Advocate Richard Buchanan, SC, on behalf of the BCM rejected the contention that GOBA/SSI/ALG had not qualified on the basis of its structuring.

He said the tender recognised a distinction between the “bidder” in a narrow sense and a joint venture or consortium that may be made up of the bidder and other entities that did not form part of the “legal person” of the bidder.

Argument continues today.