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Thread: KZN Appeals Tribunal - help needed

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    KZN Appeals Tribunal - help needed

    I have been involved in 2 very large appeals against tender awards in KZN over the las 12 months. Have also been involved in a number of tender bids over the past 2 years and learned a fair bit about what is required, the various regulations etc.

    However the 1 thing that has stood out is that all is not well in tender circles in KZN (I guess other provinces are the same) and there simply are just too many irregular awards taking place. The alarming thing is that although the Appeals Tibunal is theoretically and by definition an independent one made up of non-government officials who should be applying their unbiased independent minds, there is a lot of reason to believe that this is not happening.

    These are the concerns I have:

    1. Appeals generally are rushed and Apellants are not afforded sufficient time to present their case because the Tribunal has so many matters to hear on any
    given day (a signal that all is not well with award compliance or that the Tribunal simply just doesnt meet often enough and crams hearings into 1 day).

    2. The Tribunal, by my observations, tends to "bully" the Appellants, particularly those not represented by an Attorney, by throwing random questions at
    them, often immaterial to the grounds of appeal being brought, and seem to fish for technical reasons to dismiss the appeal rather than paying
    attention to the grounds it is being asked to consider.

    3. Once they have made a ruling, often based on technical immaterialities of the Appellant, there is no process for dissatisfied appellants to take the matter
    further other than through the courts. What 1 needs to consider is that going to court is more often than not, unaffordable for most folk who simply
    therefore dont take it further. My suspicion is that the authorities know this and are not concerned about the correctness of their decisions/rulings.

    There is no Public Watchdog or Monitor tracking Appeal proceedings - no information available from which to assess which departments are having their
    awards contested, how many appeals have taken place, how many Tribunals are being held, when they are being held, monitoring that their turnaround
    times conform with the prescripts of regulation and policy, how many are being dismissed, how many are being upheld, what the rulings were, which departments are being appealed etc etc

    In my humble opinion the Appeals Tribunal system is failing the public dismally and favouring the state alarmingly, which is not why it was set-up. In the process the constitution is being made a mockery of on a number of grounds.

    Hundresd of millions of rands are being awarded improperly, irrregularly and unconstitutionally on a monthly basis across the country and I am tired of merely complaining about it. Enough is enough and I would like to be part of the solution and try to do something about it.

    Does anybody know whether there is a mechanism that monitors Appeals and where one can access it?. If its a state compiled one I'm not interested.

    More importantly, can anyone offer advice on specifically how a Monitoring System could be set up, or which organisations I could approach to consider doing so or is anyone able to offer assistnce in setting a "Watchdog" up?

    One final word with due respect to all who may wish to reply - please, please, please lets not make this a "bitching dumping thread" to offload our personal views about what is wrong or what we are feeling. I truly believe the majority of people share my concerns or would share my concerns if they were better informed and therefore it would be very much appreciated if replies could focus specifically on my call for help in the preceeding 2 paragraphs.

    Sincere thanks in advance.

  2. #2
    Site Caretaker Dave A's Avatar
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    gac, with most of the tender processes I've been involved with, how the heck do you get enough information to put together an appeal in the first place?

    The lack of transparency in the tender process would seem to make this a virtually impossible task. All the feedback we get is a notification of who won the tender - and only if we ask.
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member sterne.law@gmail.com's Avatar
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    The fundamental problem is the abuse and the power play.

    Many tenders are taken on review, remembering that a certain percentage are merely disgruntled persons, particularly where there is no great cost involved. The contrast to that is that the tribunals are operating at an "advanced" level as pointed out, such as teh technical issues.

    They should rather use a CCMA type mindset in that the persons appearing are "laypersons" and therefore cant be expected to present heads of arguments, cases etc, etc. The tribunal then makes a decision based on what can and cant be allowed, disadvantaging the smaller businesses. Rather than listening to the story and facts to indicate if something is awry.

    Regarding time given, it must be noted that for obvious reasons there cannot be huge delay, otherwise government would come to a halt (although that in itself is probably a misnomer)

    And there is no doubt that because High Court review is the only next option, the chances of this happening is slim. A small simple review will probably set you back about R250K

    All this encourages the continued pillage via tenders. So have to agree something and someone needed.

    Access to info also a huge issue.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Diamond Member Blurock's Avatar
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    Quote Originally Posted by sterne.law@gmail.com View Post
    The fundamental problem is the abuse and the power play.
    Agreed. I am not involved in tenders, but I have seen the abuse some of my clients have had to go through to get legitimate business. They are too small to pay bribes or expensive lawyers. It appears that this is being exploited to favour bigger firms that do have the resources.

    The Municipal Procurement Act specifically prohibits the acts and shenanigans applied by municipal officers in an attempt to favour their preferred bidder, to the expense of other suppliers;

    2. Specifications -
    c) where possible, be described in terms of performance required rather than In terms of descriptive characteristics for design;
    d) may not create trade barriers in contract requirements in the forms of specifications, plans, drawings, designs, testing and test methods, packaging, marking or labelling of conformity certification;
    e) may not make reference to any trade mark, name, patent, design, type, specific origin or producer unless there is no other sufficiently precise or intelligible way of describing the characteristics of the work, in which case such reference must be accompanied by the words "equivalent";

    Maybe a class action should be started by all the bidders who had been cheated out of tenders in this way.
    Excellence is not a skill; its an attitude...

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    Thanks for the responses chaps.

    Dave A, agreed it is not easy to get information but there are ways and means. In simply talking to other bidders and people in the industry you will be amazed at what info comes out. Obviously one has to be fairly cautious in what and who to believe however in our case we managed to verify information between lodging notice of intention to appeal and appeal (have 10 working days after the accused department has formally responded in writing to the question of why "we" were unsuccesful and why the preferred bidder was).

    Anthony, my understanding is that a Tribunal is not conducted as a court case might be in that no evidence is led, no affidavits accepted, no cross questioning etc, merely a presentation of the grounds of appeal and perhaps a few questions directed bu the Chair to either party for clarification of issues the Chair elects. Furthermore, an Appellant , merely has to provide a case which on balance of probablity suggests that a decision was irregular, improper or in contravention of the Act (PFMA).
    Please correct me where I am incorrect.

    I fully appreciate the urgency to deal with the Appeal, however cant help but feel that the KZN Tribunal does not afford itself reasonable time for Appellants to present their case and certainly does not take the time to sufficiently delve into the issues. My most recent experience (Thursday 9th) on a R10.7 million Appeal I presented for my client did not get the time the magnitude of the value deserved. Fortunately we managed to compile and present a detailed 17 page Heads of Argument, which we believe provides a compelling argument on balance of probability to render the award decision as "fruitless and wasteful expenditure".

    We had an opportunity to speak to some of the other 11 Appellants on the day and the feeling was unanimous amongst those there for more than the 2nd time. It is a flawed process and seldom yields a fair result. Nearly every single Appellant we spoke to expressed the same concerns and disgust with the Tribunal system in KZN.

    Blurock - class action has definetly crossed my mind hence the reason for wishing to create a "Watchdog Registry" of sorts. Once one has the names/contact details of parties, knowledge of the the nature of the Appeals, the judgement/ruling it becomes a whole lot easier to initiate a Class Action suit.

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by gac View Post
    agreed it is not easy to get information but there are ways and means. In simply talking to other bidders and people in the industry you will be amazed at what info comes out.
    In my experience you can get a lot of hearsay - and not much at all from the winning tenderer. I'm impressed if you managed to gather evidence of substance.

    If we're to get rid of corruption in the tender boards we need to go back to old levels of transparency -
    A list of the bidders, the bids, the claimed preferential procurement points (or now B-BBEE level I suppose), and any variances submitted.

    That'll make it a lot harder for the officials to get up to mischief - and Appeals Tribunals to just sweep appeals under the carpet.
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member sterne.law@gmail.com's Avatar
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    The underlying problem is still the cost to take a matter further.
    I often say it is not always what the law says, or what the rules are or what is supposed to happen..its what does happen.

    Further problem is that a state department is involved and they have no hesitation or problem in wasting money defending any issue just for the hell of it.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Diamond Member wynn's Avatar
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    A few 'awarded tenders' were reversed in the EL area of the Eastern Cape by using the "Not applying their mind tactic"
    Basically you accuse the tender board of not applying their minds to the matter, very difficult for them to prove otherwise if they have done something underhanded.

    Also if you have proof of shenanigans, lay a charge with the police, they have to investigate.
    "Nobody who has succeeded has not failed along the way"
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    Quote Originally Posted by Dave A View Post
    If we're to get rid of corruption in the tender boards we need to go back to old levels of transparency -
    A list of the bidders, the bids, the claimed preferential procurement points (or now B-BBEE level I suppose), and any variances submitted.

    That'll make it a lot harder for the officials to get up to mischief - and Appeals Tribunals to just sweep appeals under the carpet.
    In terms of Regulations any award in excess of R500k, which is the entry level threshhold for a Public/Open Tender, must be published in the Government Tender Bulletin as well as the media originally advertised in with the exact info you have mentioned. There should also be a public opening of Public/Open Tenders and if there isn't you are entitled to request a list of bidders and their bid price.

    Unfortunately most Appeals are entered on the basis of suspicion and it is invariably only once you get to the Appeal that Tender documents are made available and useful information discovered. But that is where the "balance of probability" scenario kicks in and one needs to build an Appeal around it. In chatting to the Attorney of another Appellant I learned that they had successfully lodged an Appeal to request the Tribunal to instruct the accused Dept to make Tender documents available, where that information has been denied. That gives one a chance to find verifiable information which may or may not be useful in your Appeal.

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