Authored by Felix Le Roux.
On 24 June 2026, the Supreme Court of Appeal dismissed an unusual legal challenge brought by a successful bidder seeking to set aside the very tender awarded to it.
A security services company had submitted a bid for two clusters, A and B, of work for a state department in Gauteng. The bidder did not reference or mark its pricing schedules for the respective clusters properly and the schedules were submitted in reverse sequence, with the cluster B schedule preceding the cluster A schedule.
The department evaluated the bid in the sequence submitted and awarded the tender for cluster A to the bidder based on the cluster B schedule. The bidder signed a contract recording the price in accordance with the figures in the cluster B schedule. The contract provided that any mistakes regarding pricing would be at the bidder’s own risk.
The bidder belatedly claimed that the department had committed a material error of fact in awarding the tender and concluding the contract based on the incorrect pricing schedule. According to the bidder, the department was obliged to scrutinise the pricing schedules more carefully and it should at least have sought clarification from the bidder. The department denied those allegations and the bidder instituted a review application.
The court affirmed the well-established principle that the inquiry on review is directed at the lawfulness of the process, not the correctness of the outcome. On that basis, the court ruled that the department’s conduct could not be faulted. It was entitled to consider the bid in the sequence in which the pricing schedules were submitted and there was no obligation on the department to interrogate the commercial rationale of any particular bid or to analyse its contents in minute detail.
Responsibility for the error rested with the bidder, which had failed to mark the schedules properly in its bid and then signed a contract that expressly placed the risk of pricing mistakes on it. The department was not at liberty to seek post-submission clarification in any event, as that would have undermined the competitiveness and fairness of the tender process.
Even if the department had committed a reviewable error, the bidder would not have been entitled to an order obliging the department to effect payment at a different price, because the contract had already expired in April 2026 and the relief sought would improperly amount to enforcing the contract at a higher price.
The court therefore dismissed the bidder’s appeal.