“Pursuant to any lawful tender processes being implemented, we contend that the constitutional provisions to any termination of contract and government procurement processes should apply — when being assessed by the court for any lawfulness and fairness, before an interim interdict can be granted,” Brilliantel argues.
The company provides email services — enterprise-grade email, communication, archiving, software solutions, encrypted and secure communications — to the Gauteng e-gov-ernment department.
“We assert and affirm that in the termination of a contract and the subsequent award of a new contract, prior contractual obligations remain extant until fulfilled or complied with,” the Brilliantel application says. “The party not fulfilling its contractual obligations, must be scrutinised with a view to declare their conduct invalid and its outstanding obligations be fulfilled.
“The starting point for the department when asserting that it has a right to do what it has done or intends doing, is found in Section 217 of the Constitution.
“The department cannot exercise power or functions beyond those conferred by their contractual obligations and the law — being the constitution and the Procurement Law statutes.”
In the application, the company says it is seeking urgent interim protection, challenging a failure or refusal by the department to honour the transitional arrangements upon expiry of the contract.
The extension of the contract between the parties ended last month. On 21 September, the department wrote to Brilliantel to announce that the extant contract would expire on 31 October.
The company objected to the proposed termination dates and requested information on the new appointment of service provider and the department’s plans on the contractual transition.
The Techex award is stated as R197.8 million including VAT, while Brilliantel’s offer is stated at R119.6 million.
Brilliantel was recorded as scoring 120 against a functionality threshold of 128. The department says Brilliantel did not reach the price and preference assessment. Brilliantel’s sustainable challenge concerns the scoring application, the reference score correction and the relationship between the evaluated scope and the scope ultimately awarded.
The Gauteng e-government legal standoff has raised several questions, among them being whether the department made special arrangements internally to increase the contract value.
The department has a history of having been embroiled in governance and financial irregularities.
Non-compliance in IT tenders has included:
• A R30 million 24-hour express security contract in 2020, which led to an investigation being ordered into allegations surrounding the IT contract awarded to In2IT Technologies, meant to run Gauteng’s Security Operation Centre within 24 hours, under the cover of Covid-19 procurement rules;
• The long-term irregular G-Soc contract flagged by the Auditor- General and the Gauteng Provincial Legislature’s standing committee on public accounts, amid its extensions originating from Lefatshe Technologies, continuing as irregular expenditure for years because it went past its expiry date. The Service providers were noted as non-tax compliant on the government central database;
• The department recording more than R203 million in irregular expenditure, largely driven by contracts like the State Information Technology Agency (Sita) Gauteng Broadband Network contract (R191 million), an Email-As- A-Service (R12 million) and a Down Low Parking (R327 000); and
• E-government spending about R1.38 billion — an estimated 71% of its adjusted R1.94 billion budget — on external suppliers and service providers, including heavy reliance on Sita (R642.6 million) and questions around tracking software and camera contracts.
Brian Sokutu
mg.co.za
