REVISITING THE JURISPRUDENCE ON BID VALIDITY EXTENSIONS

Abstract

Is it obligatory for South African organs of state to request the extension of a bid validity period to all bidders that have responded to a bid? Or can an organ of state exclude from this request, bidders who have already been disqualified during the preliminary stages of the bid evaluation and adjudication process? This article critically analyses the recent judgements in South Africa on the matter and argues that it is both practically and legally inappropriate to exclude bidders who have been disqualified but are yet to be officially informed. To do so, would have the unintended consequences of compromising the fairness and cost-effectiveness of the tender process. The fact that the disqualification has not been approved by the appropriate delegated authority and communicated to the bidder(s) begs the question whether in such circumstances, the disqualification constitutes a “decision” and is thus an administrative action as contemplated in the Promotion of Administrative Justice Act 3 of 2000. The article further questions whether is it mandatory for all the bidders to consent to the extension of the bid validity period? Or does it suffice if some of the bidders consent whilst others do not? It is argued that requiring all bidders to consent so as to keep the bid validity alive, unreasonably presupposes that participants in a tender process are “joint bidders” whose individual offers must lapse if one of the “joint bidders” does not consent to the bid validity extension.