Durban construction firm in multibillion-rand tender battle with roads agency
CONSTRUCTION giant Aqua Transport and Plant Hire claims that the SA National Roads Agency (Sanral) deliberately blocked its bids for tenders worth billions, and that had the road infrastructure agency awarded those contracts to the firm, the government would have saved R400million.
Aqua instituted court action after Sanral’s board of directors banned it for six months and the three tenders, each worth about R1.5 billion, were subsequently awarded to Raubex Construction and Rumdel Construction. In December, the company successfully interdicted the work from proceeding on the contracts and the trial is set to begin on May 21.
The contracts were for the upgrade of national roads across Kwazulu-natal. Aqua wants Sanral’s tender awards set aside and their bids for the three contracts re-evaluated.
Sanral, the two companies awarded the contracts and Transport Minister Fikile Mbalula are the respondents in the matter that will be heard in the Pietermaritzburg High Court.
The respondents have indicated their intention to oppose Aqua’s action.
Ashwinkumar Bhagoo Bhikha, Aqua’s chief financial officer, said in the company’s founding affidavit the ban was due to an alleged administrative flaw in the first contract that nullified the other two bids.
“We duly complied with protocols and completed Form A8 for all three tenders, with our bank details, and attached a letter from Standard Bank,” he said.
He said on December 11, 2019, Sanral demanded to be furnished with Aqua’s bank letters for the first contract, confirming its financial standing, as per Form A8, within 24-hours.
“We were threatened, failing which, our offer would be rendered non-responsive. Sanral’s demand was substantially and procedurally flawed.
“If the bank letter rendered us non-responsive, then we should have been rejected. Their demand ought to have been a request for clarification, but only 24 hours to respond to a clarification request is not a prerequisite,” he said.
A similar request was made for the third contract.
Bhikha said the bank resolved the request within 24 hours but in error only submitted a letter for the third contract, and not the first contract. This happened on the day Aqua closed for business, in keeping with the construction industry’s annual shutdown.
On March 24, 2020, Sanral requested an extension to the tender validity period for the first contract to September 18, and Aqua obliged.
On May 6, Sanral’s bid evaluation committee confirmed that Aqua’s offer for the first contract remained under evaluation, but said the bank letter was missing and warned that a six-month ban could be imposed.
Aqua noted Sanral’s stance, and its director, Donovan Naicker, wrote to the entity and apologised for the inconvenience.
On September 9, Sanral made a further extension to December 11 for the first contract, but on November 17, Aqua discovered on Sanral’s website that the contracts were already awarded.
Bhikha said they emailed Sanral stating that they had received no rejection letters for their respective bids. Sanral responded that on October 18, their board of directors had banned Aqua for six months.
He said Aqua attempted to gain further clarity on the decision, but was told the decision was final.
Therefore, Aqua approached the courts and was granted an urgent interdict, and was now awaiting the start of the trial in the coming weeks.
Smangele Nkambule, Sanral’s procurement manager, said her answering affidavit to Aqua’s court application was done in haste, but challenged Aqua’s allegations.
“Papers were served on December 23 and the matter proceeded on December 30, but Sanral offices were closed from December 24 to January 4.
“We were prejudiced by not being afforded the opportunity to respond, so the matter must be dismissed,” she said.
But Nkambule said should their claim of prejudice be disregarded, the matter should still be dismissed as Aqua, in its own founding affidavit, admitted to its own errors.
Jasper Cornelius van der Bijl, Raubex’s director, in his affidavit said that Aqua had only itself to blame for its predicament, and that the matter should be dismissed.
Rumdel’s director, Gunyaziwe Makaula echoed Sanral and Raubex’s standpoint that the case should be dismissed.