Raubex set to challenge award of Clanwilliam Dam tender

28-07-2023
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The Citizen
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Asks high court to order Department of Water and Sanitation to provide it with the tender adjudication documentation.

Raubex Construction, part of the JSE-listed Raubex Group, has lodged a high court application for the provision of documents used to adjudicate a tender linked to the upgrading of the Clanwilliam Dam in the Western Cape.

This follows the contract apparently being awarded to JSE-listed Stefanutti Stocks despite Raubex’s bid being the lowest and 18.64% or R9.54 million cheaper than the winning bid.

Raubex has applied to the Western Cape High Court to order Minister of Water and Sanitation Senzo Mchunu, alternatively the director-general at the department, to provide within five days of its order being granted:

Full reasons for its decision to award the tender to Stefanutti Stocks and not Raubex Construction;
The date on which Stefanutti Stock was awarded the tender;
Copies of the letter of award to the successful tenderers for this tender;
Copies of all evaluation reports, including the Bid Evaluation Committees’ reports, whether internally generated or externally sourced, related to this tender;
Minutes of the Bid Evaluation Committee meetings and Bid Adjudication Committee meetings, together with any reports submitted to these committees and recommendations made related to the tender;
The completed form of offer and acceptance documents as per the tender document for this tender; and
Permission for Raubex Construction to approach the court, after receipt of this requested information from the minister of Water and Sanitation, for an interdict on the same papers duly amplified.

Stefanutti Stocks was cited as the third respondent in the application.

Russell Crawford, group CEO of Stefanutti Stocks, said on Thursday the company has not been served with the court papers, and it is following this up with the Department of Water and Sanitation.

"Comment was requested from the department, but a response has not yet been received."

The minister, director-general and Stefanutti Stocks have, according to the notice of motion, until Friday 28 July to notify Raubex’s attorneys if they intend to oppose the application, which is set to be heard early next month.

Inquiries ignored

Raubex Construction operations director Martin du Rand said it is very disconcerting that all of Raubex’s inquiries since 15 June have been ignored by Mchunu, and Raubex is unable to obtain the information requested from any other party and/or institution.

"Du Rand stressed that for Raubex to decide whether the award of the tender was fair, equitable and transparent, it would need to have the reasons and documents supplied to it as requested from Mchunu."

He said Raubex contemplates having the decision of Mchunu to award the tender to Stefanutti Stocks reviewed. But while those contemplated proceedings are pending, and these proceedings are pending, he has been advised that the operation of the administrative action, which will form the subject of the review proceedings, will not be halted.

Du Rand said this will have to be cured through a high court application for the interim relief sought in terms of an urgent interdict, which should ideally only be done after the receipt of the reasons for the administrative action from Mchunu.

He added that the project under the tender is in its beginning phase and Stefanutti Stocks will suffer no prejudice if the information and reasons requested by Raubex are provided.

Public interest

“It is clearly in the interest of justice that the applicant [Raubex] be given these reasons and documents as soon as possible to minimise the impact of the proposed interdict and review application on the successful tenderer who may face judicial proceedings seeking the setting aside of the decision by the first respondent [Mchunu],” said Du Rand.

“Public interest also dictates this issue be dealt with as expeditiously as possible.

“This matter will cost the public an excessive amount because of the appointment of a significantly more expensive tenderer.

“The higher tender price of R9 million over a tender period of 36 months will cost the taxpayer R250 000.00 per month extra,” he said.

Mchunu in September 2022 called on interested contractors with a Construction Industry Development Board (CIDB) grading of 7CE or 7SE or higher to submit their bid offers to be appointed as a contractor for this tender, which was for the concrete surface preparation for the raising of the Clanwilliam Dam wall.

Du Rand said the tender remained open until 11am on 24 January 2023 but the closing date was extended until 15 February 2023.

Tender scores

He said Raubex Construction complied with all of the requirements of all phases of the tender and was a responsive and compliant tenderer.

Du Rand claimed Raubex should have reasonably scored:

72 out of a possible 100 points for functionality;
90 out of a possible 90 points for price;
10 out of a possible 10 points for B-BBEE; and
Total points of 172 out of a possible 200 points.
Du Rand said only three bids were submitted for this tender. Raubex Construction submitted the lowest tender at R51 235 914.00, while Stefanutti Stocks submitted the second lowest tender at R60 784 080.47.

“The difference between the two tenders is a staggering R9 548 166.47.

In regard to the requirements of competitiveness and cost-effectiveness, Raubex referred to its price and B-BBEE status.

Du Rand said Phase 6 of the evaluation is based on the functionality, price and B-BBEE status level.

“I have taken the liberty of calculating the third respondent’s [Stefanutti Stocks’] score for its price and preference, and accepted that they have B-BEE level 1 status.

“The Honourable Court will note that the maximum score the third respondent [Stefanutti Stocks] could have obtained is 83 points.

“This makes it highly unlikely that the third respondent [Stefanutti Stocks] could have outscored the applicant [Raubex] who scored 100 points out of the possible 100 points,” he said.

Raubex says the case is a public interest matter as the appointment of a significantly more expensive tenderer will cost taxpayers an excessive amount. Image: Department of Water and Sanitation

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