Anyone involved in South African public procurement knows the “tender validity period”. The fixed window, stated in the tender invitation, during which a bid remains open for acceptance and bidders stay bound to their quoted prices.
The trouble is, organs of state often run out of time, and the period quietly expires before an award is made.
So, what then?
The Joubert Galpin Searle Case
This question was answered authoritatively in Joubert Galpin Searle Inc and Others v Road Accident Fund and Others [2014] ZAECPEHC 19[1].
The facts were straightforward enough. The Road Accident Fund invited law firms to bid for a place on a panel providing ongoing litigation services, with bids required to remain valid for 90 days from the closing date. The RAF failed to complete its adjudication within that window. Once it realised the validity period had lapsed, it asked the shortlisted bidders to extend their bids to a full year. Most agreed, the process continued, and tenders were eventually awarded. Unsuccessful bidders then challenged the process, arguing it had effectively ended the moment the original 90-day period expired.
What the Court Decided
Plasket J agreed with the disappointed bidders. The judgment established two important principles:
- First, once a tender validity period lapses, the procurement process comes to an end. There are simply no live bids left for the organ of state to accept, so no contract can come into being.
- Second – and this is the sharper point – an organ of state cannot revive a lapsed process by asking bidders to extend their validity period after the fact. The power to request an extension exists only as part of the ongoing procurement process. Once that process has ended through the lapse of time, the power ends with it. Any attempt to extend the period afterwards is simply unauthorised, and therefore unlawful.
Put differently: extensions must happen before the clock runs out, not after.
Practical Implications
For organs of state, there’s no second bite at the cherry once a tender validity period lapses unannounced. Procurement officials must monitor these deadlines and seek extensions before expiry.
[1] This position was confirmed by the Supreme Court of Appeal less than two years later in Aurecon South Africa (Pty) Ltd v Cape Town City [2015] ZASCA 209, and Joubert Galpin Searle remains good law to this day.
