Procurement by an organ of state is subject to the constitutional requirements of fairness, equitability, transparency, competitiveness, and cost-effectiveness. These five principles are the standards against which all procurement by an organ of state is measured.
PAJA and the review of administrative action
The decision to award a contract to a particular party will, in most circumstances, constitute administrative action on the part of the organ of state. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) allows any person to institute proceedings before the High Court for the review of administrative action.
‘Administrative action’ includes almost all government procurement decisions, and sets out both the codified grounds of review and established remedies. Those procurement decisions falling outside the ambit of PAJA may be reviewed in terms of the constitutional principle of legality, which constitutes a component of the rule of law.
The court cannot review an administrative decision until all internal remedies provided for under the applicable legislation have been exhausted.
Judicial review applications
Any application for judicial review brought in terms of PAJA must be made as soon as possible and at most within 180 days from the date the person was informed of the decision, or the date on which any internal procedures are concluded (the 180-day limit may be extended).
Judicial review applications can be dismissed on account of an unreasonable delay and aggrieved bidders must therefore act with the utmost expediency when seeking to challenge procurement awards. The review of a tender can take on average from six months to two years.
When common law applies
In the limited instances where government procurement does not constitute administrative action, and it is reviewed on the constitutional principle of legality, common law would apply. Although it does not have the same requirements as PAJA, it is advisable to try and adhere to the principles applicable to the review of procurement decisions constituting administrative action.
Speak to an expert
It is important for aggrieved bidders to understand the procedures relating to the review of procurement to effectively exercise their rights. For legal assistance regarding tenders, please contact our knowledgeable team at Abrahams & Gross.
For Litigation and Dispute Resolution expertise
Basilio de Sousa basil@abgross.co.za
Henno Bothma henno@abgross.co.za
Wesley Scheepers wesley@abgross.co.za
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Disclaimer
The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.