In setting aside the tender process followed by SAA in awarding a contract for ground handling services, the High Court recently examined the obligations in this regard of any “organ of state exercising a power in terms of the Constitution or performing a public function in terms of legislation”.

In essence, there is an “ever flexible duty to act fairly” – fairness in this instance entailing “a consideration not only of the interests of the excluded tenderer ....... but also the interests of all the constituents who are affected thereby” (in this case the State, taxpayers and the flying public).

The Court commented that “tender procedures are vital to the very essence of effective government procurement policies. These procedures may well be described as intended to ensure that government, and therefore SAA, before it procures goods or services, or enters into contracts for the procurement thereof, has ensured that a proper evaluation is done of what is available, at what price and whether or not that which is procured serves the purposes for which it is intended. It has as its duty the obligation to ensure that SAA gets the best price and value for that which it pays.”

Finding that one of the tenderers had been denied both sufficient time and sufficient information to enable it to formulate a bid, it set aside the whole tender process as “a sham”.