The applicant, a private company, unsuccessfully bid for a tender to provide office accommodation for the South African Local Government Association’s (SALGA) Eastern Cape office. After learning that a higher-priced bid was accepted, the applicant requested information to assess the grounds for review and potential setting aside of the tender award. Despite reminders, the applicant did not receive the requested information within the 30-day period prescribed by PAIA, prompting the urgent application.

The application was brought under section 5(1) of PAJA, requesting SALGA to provide written reasons for its decision regarding the tender award, and under section 25(1) of PAIA requesting SALGA to furnish the applicant with documents relating to the tender award which included, inter alia, copies of all bids submitted, adjudication reports and copies of its recommendations. The applicant required such information to assess the merits of an application for review and the setting aside of the respondents’ decision to award the tender to the third respondent.

SKG Africa argued in its application that:

• The court reduce the 90-day period for providing reasons under section 2 of PAJA to a lesser period of 48-hours. This expedited timeline was authorised under section 1 of PAJA, which allowed for time-periods to be shortened when necessary.
• It had also repeatedly made requests to the SALGA to furnish it with the tender documents within 30 days as prescribed by PAIA. Since SALGA did not respond within the specified period, this was considered a ‘deemed refusal’ under section 27 of PAIA.

In terms of urgency, the applicant contended amongst other things that the matter would take up to a year to resolve if it were to proceed in the ordinary course of the legal process. At such time, the successful tenderer would have already started executing the tender. The applicant was only entitled to damages from SALGA in the case of fraud and was exposed to irreparable financial prejudice if the application was not heard as a matter of urgency. On the other hand, the respondents asserted that the applicant’s application relied on two straddled pieces of legislation, each prescribing different methods and timeframes for handling requests for information. PAIA focuses on the provision of documents while PAJA deals with the provision of reasons for administrative decisions. The respondents also denied that a decision was taken to refuse the applicant’s request for information or that its right to administrative justice was infringed.

Courts findings

The High Court agreed with the respondents that the applicant’s application straddled two pieces of legislation. Notwithstanding this, the court highlighted that the purpose of PAIA was to give effect to the constitutional right of access to any information required for the exercise or protection of any right, including the right to fair administrative action. The applicant had complied with the procedural requirements of PAIA in requesting access to the information it sought. Furthermore, the applicant’s access to information would enable it to decide whether to apply for a review and the setting aside of the first respondent’s decision to award the tender to the third respondent. As such, the applicant was justified in seeking the court’s intervention. Accordingly, the court held that the application was urgent and ordered the first and second respondents to jointly produce for inspection and collection, the documents sought by the applicant within 48 hours of service in terms of PAIA.

In summary, while the court recognised the urgency of the applicant’s need for certain tender-related documents, it did not find it necessary to reduce the statutory 90-day period for the provision of reasons under PAJA. The court balanced the need for expediency with the respondents’ right to a reasonable period to prepare their reasons.

The court acknowledged the urgency of the matter, particularly due to the potential for imminent implementation of the tender and the need for the applicant to exercise its rights to fair administrative action. The court ordered the respondents to produce copies of the documents listed in paragraph 4 of the notice of motion within 48 hours of service of the order. This included a variety of documents related to the tender process, such as bids submitted, minutes of meetings, evaluation and adjudication reports, and supply chain management policies. The applicant’s request for a reduction of the 90-day period to provide reasons was not granted, but the court ordered the immediate production of documents, recognising the need for the applicant to have access to this information to assess its legal options. Each party was ordered to pay its own costs, as the applicant only succeeded partially in its application.

PAIA vs PAJA

The difference that stands out in this case between PAIA and PAJA is primarily in the nature of the information sought and the timeframes within which responses are required.

Under PAIA, the applicant sought access to specific documents related to the tender process, such as bids submitted by other parties, minutes of meetings and evaluation reports. PAIA provides a framework for requesting and accessing information held by public bodies, with a requirement for the information officer to respond within 30 days of the request, failing which the request is deemed to have been refused.

In contrast, PAJA concerns the provision of reasons for administrative decisions. The applicant requested written reasons from SALGA for the decision to award the tender to another party. PAJA allows for a longer period of 90 days for the administrator to provide reasons for the administrative action, which may be extended or reduced by agreement or by a court.

The court’s approach in this case was to recognise the different purposes and timeframes of the two acts. While it recognised the urgency of the applicant’s need for documents under PAIA and ordered their production within 48 hours, it did not find it necessary to truncate the 90-day period for the provision of reasons under PAJA, acknowledging SALGA’s commitment to provide a substantive response within the statutory timeframe.

Conclusion

This case highlighted the importance of balancing the need for urgent access to information with the procedural requirements and timelines set by legislation. The court’s decision highlights the importance of transparency and accountability in public procurement processes, while also respecting the legal timeframes established for administrative actions. It underscores the rights of unsuccessful bidders to seek reasons for tender decisions and access relevant documentation to assess the fairness of the process and to consider legal challenges if necessary. The case also emphasises the role of the courts in ensuring that such challenges are handled expeditiously without unduly prejudicing any party involved.