Tech company Siemens has lost a case it had brought against power utility Eskom in the Johannesburg High Court in which it wanted the review of a tender bid it lost.
Siemens, which conducts its business in industry technology, infrastructure, digital transformation, transport as well as transmission and generation of electrical power, took Eskom to court to argue that a tender that was awarded to another company, GE Digital South Africa, be reviewed.
Siemens sought to interdict the power utility from concluding a contract with GE Digital, following the award, and executing any contract that may already have been concluded, pending the determination of its review. It argued in court papers that Eskom permitted GE Digital to enjoy advantages over other bidders.
“GE was the incumbent provider of the existing system and thereby secured knowledge and access that placed GE in an advantageous position to the detriment of the two other bidders. This was neither fair, equitable, transparent or competitive, and so rendered the process unlawful,” Siemens said.
Initially, Eskom had issued a tender to seek bids for the construction of a new transmission power system control and monitoring system.
The tender was divided into two parts, where “Part A” was for the provision and maintenance of a software system; and “Part B” for the provision and maintenance of front and rear projection systems.
GE Digital submitted a bid for the provision and maintenance of a software system, while Siemens and Hitachi Energy South Africa also tendered.
In court papers, Siemens stated that on January 8 this year, Eskom published its decision to award part of the tender to GE Digital but did not award the remainder of the contract to either Siemens or Hitachi.
Siemens lawyer advocate Louis Hollander said the company was informed by Eskom that its bid was unsuccessful.
After Eskom had entered into a contract with GE Digital, following the award of the tender, Siemens challenged the decision by way of judicial review.
“Siemens brought its application in two parts. In part A, it sought to interdict Eskom from concluding a contract with GE, following the award, and executing any contract that may already have been concluded, pending the determination of its review.
“Siemens agreed to forego its part A relief, in consideration of an expedited timetable under which the record would be produced, and further affidavits exchanged. This the parties have done with commendable expedition, permitting the review to be heard,” Siemens argued in court papers.
In his ruling Judge David Unterhalter said the tender provided for a validity period which expired on October 31, 2023 and was not lawfully extended.
“I find, for the reasons given, that the grounds of review relied upon by Siemens cannot prevail. I do not consider that there is a warrant to impose a punitive costs order. Siemens advanced certain grounds of review that it did not ultimately pursue. They were not recklessly raised.
“Litigants should not be dissuaded from determining that certain grounds of review have been answered or ultimately hold less promise than initially expected. The application is dismissed with costs.”
