In its May 2020 decision in Qingjian Group Co. Ltd v. Procurement Unit, the Lesotho Appeal Court nullified an improper re-evaluation process after ruling that the government failed to properly follow a prior order that required the government to award to the best compliant bid. The dispute dealt with a tendering process for the construction of a new senate building for the Lesotho Parliament. The tendering process was initially cancelled, but a lower court ordered the government to proceed with that process and award to the best compliant bid.
The government misunderstood that order and conducted a re-evaluation, awarding the contract to a bidder that was deemed non-compliant during the prior evaluation. That award was legally challenged. The non-compliant winning bidder ultimately appealed the lower court ruling, arguing that it was entitled to the contract award. The Appeal Court disagreed, finding that non-compliant bids are legally incapable of acceptance:
It is common cause that the appellant failed to comply with the tender specification back in 2012 and was disqualified from the tender as a result. Whatever happened later, appellant was already out of the picture. That in a nutshell was the essence of Molete J’s decision. In its written submissions the 5th respondent referred appropriately to Sanyathi Civil Engineering & Construction (Pty) Ltd & Another v e Thekwini Municipality & Others, Group Five Construction (Pty) Ltd v e Thekwini Municipality & Others (KZ) [2011] ZAKZPHC 45, 2012(1) BCL 45(KZP) wherein it was stated that “procurement is prescriptive precisely because the award of public tenders is notoriously prone to influence and manipulation. Allowing discretion would weaken the law of its purpose of preferential procurement and curbing corruption.” There is an element of improper and preferential treatment, as observed by Molete J, in what transpired between the Ministry and the appellant in 2017 when an attempt was made to re-open the door to a tenderer that had failed to meet the bid specification some 5 years before.
The Appeal Court therefore dismissed the appeal.
As this case illustrates, unless the process rules expressly permit rectification processes, purchasing institutions cannot unilaterally conduct re-evaluations to repair non-compliance and award to ineligible bidders. Any contract awards resulting from such flawed processes are highly vulnerable to being voided in subsequent legal challenges.
