Administrative Law regulates the conduct of organs of state, public bodies or other juristic or natural persons exercising public powers and performing public functions. Mostly, the functions so performed constitute decisions of these bodies, normally being an organ of state or other body having certain powers received from empowering legislation. When decisions are taken unfairly, unreasonably or otherwise unlawfully on one or other basis, the administrative action so performed, should be reviewed by a court of law in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) or other applicable legislation.
Notionally, businesses are mostly confronted with administrative actions of government or other administrative bodies in circumstances where tenders or bids are submitted to be awarded. This may also be referred to as Procurement Law.
In terms of the Constitution, the Preferential Procurement Policy Framework Act (“the PPPFA), the Public Finance Management Act (“the PFMA”) and other prevailing legislation, administrative bodies are required to put out tenders and consider and award tenders within that legislative framework and to align their procurement processes therewith. In addition, the internal procurement processes and policies of such administrative bodies, should be drafted and provide for their procurement in line with the provisions and prescripts of the prevailing legislation.
In circumstances where an internal appeal procedure is not provided for in terms of empowering legislation or otherwise, tenders that are awarded – and similarly other administrative actions – in contravention of such procurement law prescripts, remain valid and can only be reviewed and set aside in a High Court in line with the provisions of PAJA and/or by relying on the principles of legality.
Sometimes, government or other administrative bodies do not award tenders to companies which have submitted bids scoring the highest points; be it based on performance, pricing and/or scoring on BBEEE. Other times, administrative bodies simply omit or fail to take a decision in circumstances where they have a duty to award a tender to a company within the specified timeframe.
Depending on the nature of the decision (or the failure thereof) and whether or not the decision to award a tender to a certain company constitutes a foregone conclusion, a judicial review by way of a court application can be brought.
The court may be asked to review and set aside the decision of the administrator and to refer it back to make the correct decision or to grant substitution relief and award the tender to the correct applicant (an order which is the only decision which the court believes can be made).
At Barnard Inc, we advise and assist in administrative law and procurement law and deal with complex matters pertaining to the unlawful awarding of tenders and other administrative functions not performed in terms of empowering legislation.