An urgent application that sought to force the department of education in Limpopo not to place textbook orders for grades 7, 8, 9 and 12 failed – not because the tender process wasn’t flawed but because granting the order could have “catastrophic consequences for the public”.
This week, the North Gauteng High Court dismissed an application by Oxford University Press for the selection of publishers for the printing and delivery of textbooks for the 2014 academic year to be reviewed and set aside.
It also asked the court to force the department to issue an instruction to all preferred publishers not to proceed with the printing of textbooks if orders had already been placed with them. Grades 7, 8, 9 and 12 need new books as they will be implementing the Curriculum Assessment Policy Statements in January next year.
Earlier this week, Limpopo education spokesperson Phuti Seloba told City Press: “Our view is that it’s sour grapes. They lost fair and square to their own competitors. Fortunately the judge agrees with us that they are out of order.”
But it has since emerged that the process followed by the department of education in Limpopo was flawed. The court, however, refused to reverse it in order not to jeopardise education in the province.
The court found that there was an invalid administrative action on the part of the department in that when capturing Oxford University Press’ details on its system, it changed the company’s pricing, resulting in it being ranked as one of the most expensive bidders.
The department changed the company’s pricing in an effort to accommodate it as it had not complied with the tender’s procurement guidelines, the court papers reveal.
Judge Francis Legodi argued that the tender should be invalidated because the company didn’t comply with procurement policies and because the department acted illegally by flouting procurement policies and accommodating a company which shouldn’t have been accommodated.
Delivering judgment, Legodi said: “As a brief background again, the delay of delivery of schoolbooks in Limpopo for 2012 was widely reported. It has become a matter of common cause and concern to many. Any repetition (of) what happened will in no doubt bring an outcry. But most importantly, it will offend against the provisions of section 219 of the Constitution, in particular subsection (1)(b) which provides that everyone has the right to further education, which the state through reasonable measures must make progressively available and accessible.”
He continued: “To set aside the decision to accept the tender, with the effect that the contract is rendered void from the outset, can have catastrophic consequences for the public at large in whose interests the administrative body or official purported to act. These interests must be weighed carefully against those of the disappointed tenderer if an order is to be made that is just and equitable. It is a tender that has a bearing on the learners in Limpopo.”
Arguing against the cancellation of the contract, Legodi further said when the court action was initiated in August, contracts had already been concluded with publishers and some of the publishers had already entered into contracts with printers. When the action was initiated, more than 1.6 million books of the ordered 6.6 million had already been delivered, two publishers had already, respectively, delivered books worth R12.7 million and R39.6 million, a consignment worth R8.4 million was in transit and most of the orders placed were already in production.
Legodi said setting aside the contracts awarded will have “catastrophic” consequences. “I would therefore not set aside any action that might have been wrong in the present tender process. This means that, despite the invalidity, I would have allowed the decision to stand …”
Speaking on behalf of Oxford University Press, Steve Cilliers said the company would not seek to appeal Legodi’s decision.
“We are very disappointed, but we don’t want to jeopardise the process to deliver books in Limpopo. There were irregularities, weaknesses and shortcomings in the whole process. We have decided to move on.”
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