As the City of Johannesburg unveiled 10 new fire trucks for its emergency management services’ fleet, it was served with a court application to set aside the contract for the vehicles.
Marcé Projects has approached the high court in Johannesburg asking it to set aside the contract between the city and TFM Industries, which was awarded the contract of more than R500-million for the trucks.
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In July, the Mail & Guardian reported on the increasing use of the deviation process by the city for large contracts — which allows for contracts to be awarded in cases of an emergency — including the purchase of 92 specialised fire and rescue vehicles from TFM.
Three vehicle contracts did not go out through the usual tender process:
- The vanilla fleet contract, for non-specialised vehicles, which was awarded to Afrirent;
- The green fleet contract, for the maintenance of waste management vehicles, which was awarded to Zeda Car Leasing trading as Avis Fleet; and
- The red fleet contract, for the purchase and maintenance of fire vehicles, which was awarded to TFM.
Marcé, which had bid for the red fleet, claims the city had no emergency that entitled it to deviate from tender processes.
“The applicants [Marcé] seek to have the award of the tender declared irregular, unlawful and unconstitutional and to review and set it aside.
If granted, this relief will render the bid process, and any award made pursuant thereto, invalid,” read the court papers.
Nthatisi Modingoane, the spokesperson for the city, said they had received the application “with the applicant’s [Marcé’s] version of the matter” on September 20.
“The city will oppose the application and file its papers in due course,” he said. “At this stage the city cannot discuss the case in the media and the information will be contained in the city’s pleadings.”
The city advertised the tender for the supply and maintenance of emergency vehicles including the red fleet in September last year. The tender was awarded in February, leading to numerous letters of concern from Bidvest — one of the bidders for the red fleet contract — regarding the manner in which the tender was awarded. The winning bidder eventually rejected the award, prompting the city to restart the process.
“On 16 May 2019, there was a request sent by the city to selected bidders, including the applicants, requesting confirmation of the availability of fire engines, [and] water tanks in their stocks,” Marcé’s court papers state. “The city sought confirmation of the availability of 92 fire engines, and water tanks. The request was made for vehicles that are on rubber and can be delivered immediately to the city once the due procurement processes have been approved by the accounting officer.”
The papers state that Marcé found out that the tender had been awarded to TFM after reading the M&G’s July article.
“The contract was awarded to the second respondent (TFM) through a deviation in terms of Regulation 36 of the Municipal Supply Chain Regulations,” Marcé states in its court papers. “The contract value as a result of the award, R582 991 957.22 excluding VAT.”
Marcé argues that there was no basis for TFM to be selected in the second process “given that there was an unlawful deviation from prescribed procurement processes and the award was unlawful in that the first respondent paid an up-front payment to the successful bidder despite the fact that the RFP [request for proposal] stated that no up-front payments will be made to the successful bidder”.