Tender Reviews In Court
Tender Review Proceedings in South Africa
When a government procurement process fails to meet constitutional standards of fairness, transparency, and legality, aggrieved bidders have the right to bring review proceedings. We help you challenge unlawful tender awards through judicial review in the High Court and beyond.
Is Your Tender Award Reviewable?
Checklist:
- Tender awarded to non-compliant bidder
- Disqualified without proper grounds
- Procedural irregularities in evaluation
- Failure to apply stated criteria
- Unreasonable delay in award decision
- Conflict of interest not declared
Grounds for Judicial Review
When Can an Administrative Decision Be Set Aside?
Under the Promotion of Administrative Justice Act (PAJA), an administrative action—including a tender award—may be reviewed and set aside if it fails to meet the principles of lawful, reasonable and procedurally fair conduct.
Ground 01: Unlawful Action
The administrative decision was not authorised by the applicable legislation, or the decision-maker acted outside their jurisdiction and legal authority.
Ground 02: Procedural Unfairness
The procurement process failed to follow internal procedures or denied bidders a fair opportunity to present their case before being disqualified.
Ground 03: Unreasonable Decision
The tender award lacks rational connection to the evidence, or no reasonable decision-maker could have reached the same conclusion on the merits.
Ground 04: Material Non-Compliance
The successful bidder failed to meet mandatory tender requirements, yet the award was concluded regardless of this non-compliance.
Ground 05: Failure to Give Reasons
The organ of state failed to provide written reasons for its decision when requested, as required under administrative justice principles.
Ground 06: Bad Faith or Bias
Evidence of corruption, undisclosed conflicts of interest, or predetermined outcomes that undermine the fairness and competitiveness of the process.
How Tender Review Proceedings Work
Bringing a review application requires strategic timing and thorough preparation. Understanding each stage helps you make informed decisions about your case.
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Step 1: Request Written Reasons
Under PAJA, you have the right to request written reasons for any administrative decision that affects you. This must be done within 90 days and the organ of state must respond within 90 days. These reasons form the foundation of your review application.
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Step 2: Exhaust Internal Remedies
Before approaching the court, you must generally exhaust any internal procedures or appeal mechanisms available. However, this requirement may be bypassed in instances of undue delay or where internal remedies would be ineffective.
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Step 3: Establish Prima Facie Case
Your legal team will assess the merits and determine whether you can establish a prima facie right to relief. This involves analysing tender documentation, evaluation criteria, and evidence of procedural or substantive irregularities.
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Step 4: Launch Review Application
The review application is brought in the High Court within 180 days of the administrative action. Where urgent, you may also seek interim relief to prevent irreparable harm while the review is pending.
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Step 5: Court Proceedings
The court will consider whether the administrative action meets constitutional and PAJA standards. If the court found grounds for review, it has discretion to grant the following relief: setting aside the award, directing reconsideration, or awarding costs.
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Step 6: Appeal (If Necessary)
Decisions of the High Court may be taken on appeal to the Supreme Court of Appeal, and in constitutional matters, to the Constitutional Court. Each appeal must be determined on its own circumstances.
Why You Cannot Afford Delay
In tender review proceedings, timing is everything. Unreasonable delay in bringing your application can be fatal to your case—even if the merits are strong.
180-Day Deadline
PAJA requires review applications to be instituted within 180 days of the administrative action. Missing this period can bar your claim entirely.
Contract Conclusion Risk
Once a contract is concluded with the successful service provider, courts are reluctant to set aside awards due to the public interest in certainty.
Irreparable Harm
To obtain urgent interim relief, you must demonstrate that you will suffer irreparable harm if the award proceeds. Early action strengthens this argument.
Evidence Preservation
Documentary evidence and witness recollections fade over time. Acting quickly helps preserve the factual record that will support your case.
Applicable Legislation
South African public procurement is governed by a comprehensive framework of constitutional provisions, statutes, and regulations that establish the principles of transparency, cost-effectiveness, and fairness.
Constitution, Section 217
Requires all organs of state to contract for goods and services in a manner that is fair, equitable, transparent, competitive and cost-effective—the foundation of government procurement law in South Africa.
Promotion of Administrative Justice Act (PAJA)
Gives effect to the constitutional right to administrative justice. Establishes grounds for judicial review and the procedure for challenging administrative decisions including state tenders.
Preferential Procurement Policy Framework Act
Provides the framework for implementing preferential procurement policies. Sets out how points must be allocated and the form that tender evaluations must take.
Public Finance Management Act
Regulates financial management in national and provincial government. Establishes supply chain management requirements and accountability measures for public procurement.
Types of Tender Review Cases
We represent bidders across all sectors of public procurement, from infrastructure projects to professional services.
Infrastructure & Construction
Road maintenance, buildings, water and sanitation projects including VEA road maintenance contracts
Professional Services
Consulting, legal services, audit, and accounting service provider appointments
IT & Technology
Systems implementation, software licensing, and digital transformation projects
Healthcare & Medical
Medical equipment, pharmaceutical supplies, and healthcare service delivery
Security Services
Guarding, surveillance systems, personnel vetting, and security consulting
Supply & Logistics
Fleet management, goods supply, warehousing, and distribution contracts