SANRAL BOARD STATEMENT ON THE NON-AWARD OF TENDERS

SANRAL BOARD STATEMENT ON THE NON-AWARD OF TENDERS

23 May 2022

Introduction

This is the SANRAL Board statement in response to media reports concerning the cancellation of tenders amounting to R17.473 billion.We must begin with a disclaimer that it is totally inappropriate for matters to do with tenders to be debated publicly by bidders on those tenders and the organisations concerned. Over the past week bidders on tenders not approved for award by SANRAL have gone public and disseminated negative information about the Board’s decisions in relation to those tenders.Regrettably, the media reports contain a number of comments, some of which demonstrate a lack of full and proper understanding of how decisions on procurement at SANRAL are made. It is of utmost importance that the SANRAL Board ensures that there is compliance with procurement processes in all forms – inclusive of compliance with binding resolutions – in order to uphold the applicable fiduciary duties. As a Board, we have a responsibility to uphold and enforce proper governance. We all have seen organisations fail because of problems at the governance level. Ineffective governance has compromised the ability of many SOEs to deliver on their core mandates. The SANRAL Board, for at least the time we are here, will not go down that path.

The Board of SANRAL generally plays no part in the awarding of contracts. Contracts above the value of R750 million are placed before the Contracts Committee of the Board for review and noting after the adjudication of tenders by the Management Bid Adjudication Committee (MBAC). The Contracts Committee considers, amongst others, the proactive assurance reports on such contracts that are compiled by the proactive assurance structures. If there are unresolved matters between the proactive assurance structures and MBAC, or a difference of opinion between the SCM Committees, those matters are escalated to the Board by the Contracts Committee for decisions by the Board. The Board seeks legal opinion as required and makes the appropriate decision to either note the adjudicated award, or to note but not approve the intention to award, as is the case with the tenders at issue. Although the Board is not be operationally involved in the awarding of contracts, as SANRAL’s Accounting Authority, it must account for decisions at SANRAL, and therefore the Board must exercise appropriate oversight, which includes ensuring the implementation of the law, regulations, resolutions and policies.

Constitutional and PFMA Imperatives

The SANRAL Board as the accounting authority is enjoined by Section 51 of the Public Finance Management Act, 1999 (“PFMA”) to, inter alia, ensure that SANRAL has and maintains:

an effective, efficient and transparent systems of financial and risk management and internal control;
an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective; and
a system for properly evaluating all major capital projects prior to a final decision on the project;Accordingly, the SANRAL Board is authorised and empowered by the Constitution and the PFMA to ensure it safeguards the integrity of the procurement processes within SANRAL. In keeping with this, the SANRAL Board adopted the resolution of 28 January 2020, detailed later in this document, for the reasons already mentioned

Zondo Commission

In its conclusions and recommendations in relation to a major state-owned company, the Zondo Commission repeatedly refers to Section 50 of the PFMA as a section violated by the accounting authority of that public entity, leading to the Commission recommending criminal prosecution for members of the then Board of that public entity. The Commission highlights, among others, the following obligations – in terms of the PFMA:

– The obligation to act with fidelity, integrity and in the best interests of the public entity in managing the financial affairs of the entity

– The obligation to take effective and appropriate steps to prevent irregular expenditure, fruitless and wasteful expenditure not complying with the operational policies of the public entity

The Commission goes on to cite Section 86 (2) of the PFMA which criminalises wilful or grossly negligent failure, on the part of members of accounting authorities to comply with Sections 50 and 51 of the PFMA.

We invoke the Zondo Commission because it seems some of the bidders for the tenders SANRAL has decided to readvertise have learnt nothing from the Commission. They think we are still in the past when bidders could apply public and political pressure on public organisations to award them tenders irrespective of the provisions of the PFMA. This is how state capture was born, and it is how SANRAL will end up captured – if it isn’t already – if none among its accounting authority, management, staff and stakeholders respects the legislative prescripts pertaining to public procurement.

Attacks on the SANRAL Board

Over the last week this Board has been subjected to public vilification, intense emotional blackmail and veiled intimidation by being told it had cancelled Presidential projects, and how it should have gone to National Treasury and our line Minister when it found any matters of concern with the tenders. The subtext of this attack is that we have undermined these important people and structures by not endorsing the proposed awards, and therefore we must be dealt with as brainless, delinquent and intransigent children.

In shameless and selfish efforts to turn the South African public against us, we have been presented as killers of the construction industry and portrayed as suppressors of job creation. What is deliberately hidden from the public is that we have, in two of the tenders, thwarted the very killing of part of that industry and the very suppression of job creation for ordinary people.

We have frustrated the total irregular exclusion of subcontracting in the Mtentu tender and the reduction, by a massive 50%, of the routine 30% subcontracting in the GFIP tender. This exclusion and reduction – which were decided by unauthorised individuals and structures without Board approval – combined amount to subcontractors, and these are SMMEs of designated groups, being denied and deprived of +/-R2billion in business opportunities. This amounts to thousands of South Africans denied job opportunities.

It is this Board which is defending those economic participation and empowerment rights of those people but, to fool the public, some of the bidders have angrily created the impression that they have the best interests of those people at heart when in fact those SMMEs and local communities would be largely kept out of benefiting from the projects if this Board had not seen through this injustice and allowed the current tenders to be awarded as they were proposed to be.

They say this Board is killing the industry. We invite you to objectively check the record of awards and payments made to the industry over the past three years of this Board’s stewardship of SANRAL. The facts are that over the past three years – based on records from our Management – SANRAL has awarded a total of R16.1 billion to the engineering consulting part of the industry and R27 billion to the contracting part. Overall, if you consider the industry in its totality, over the past three years, SANRAL has awarded just shy of R50 billion to the industry. One of the leaders on the attack on this Board has received, during the said three years, 21% of the R27 billion awarded in construction contractor jobs. In fact, some of the major players in the industry have, as recently as last week, announced maintaining a record order book, thanks in part to SANRAL tenders.

Because the facts contradict this nefarious assertion that we are killing the industry, we can only surmise that this is nothing but a gambit aimed at breeding government and public antipathy towards a Board which is frustrating plans for the external influence over this public entity.

Please check SANRAL awards and payments over the recent past and you will be shocked to see that the some of the leaders of the attack on this Board are the very entiities which have been benefiting more than others from SANRAL procurement. The question we must ask, and answer, then, is if this recent non-award hasn’t interfered with the culture of entitlement. How else can we explain the amount of vitriol spewed at this Board for executing its fiduciary duty to the organisation and the people of South Africa?

We place on record here today that our response to any bid tendered has always been, currently is, and will always be based solely on the law. We therefore consider the invocation of the President, our Minister and National Treasury in this matter by some bidders to be mischievous and bordering on illegality. Procurement disputes are not adjudicated upon by those individuals and structures but by the law courts. Procurement disputes are not resolved through public pressure via the media but through the objectivity and independence of our country’s law courts.

The invocation of authorities above this Board to not-so-subtly compel it to endorse proposed awards it has refused to endorse is a blatant call for the corruption of public procurement, which requires that as an accounting authority we must apply our minds independently of any external influence and act only in terms of relevant legislation and policies in pronouncing on tenders. We may, under no circumstances, involve the President, our Minister, National Treasury and indeed any other individual or structure outside properly appointed independent advisers who have no interest in the bids in making those determinations. It is for that reason that our Minister heard for the first time about our decision on those tenders at a meeting of the Presidential Infrastructure Coordinating Commission, which structure itself only got to hear about our decision when it requested an update on the status of economic recovery projects.

In the three years plus of its existence this Board has never discussed procurement within SANRAL outside internal and relevant formal processes.

Section 217 of the Constitution provides that an organ of state, if authorised by law, may contract for goods and services on behalf of the government. However, the tendering system it devises must be fair, equitable, transparent, competitive and cost effective. One of the primary reasons for the express inclusion of the five principles in section 217(1) of the Constitution is to safeguard the integrity of the government procurement process. The inclusion of the principles, in addition to ensuring the prudent use of public resources, is also aimed at preventing corruption. Compliance with the requirements of a valid tender process is peremptory, and it is not open to a state entity to simply disregard these as, to hold otherwise, would undermine the integrity of the procurement process. This would be inimical with the obligation of ensuring fairness, equity, transparency, competitiveness and cost effectiveness in public procurement. It is for that reason, among others, that the Board took exception to a recommendation for a bidder who should have been disqualified to be awarded a tender, and in another instance the disqualification of a bidder who should have been considered for award.

Very crucially, the PFMA says the accounting authority of a public entity must comply and ensure compliance by the public entity, with the provisions of the Act and any other legislation applicable to the public entity. It does not make this compliance optional.

Reasons for Board Decisions

Let us now talk about how the Board of SANRAL went out of its way to give effect to its fiduciary obligations referred to above, and in terms of the PFMA. We refer, in particular, to the obligation of preventing irregular expenditure, and fruitless and wasteful expenditure; the obligation to ensure effective internal controls; and the obligation to ensure that procurement within the organisation is fair, equitable, transparent, competitive and cost effective.

The background to this deliberate action of giving effect to these PFMA obligations by the Board is an important one. The background was the discovery by the Board, in January 2020, that the construction contractor bid evaluation process in the organisation had a major, and potentially corruptive, flaw. The process allowed the same service provider to do design drawings for an infrastructure project; develop the technical specifications for the tender for that project; and determine the technical bid to be recommended for award by the Bid Evaluation Committee if it meets other criteria.

On January 28, 2020, the SANRAL Board adopted a resolution that the consultants who are involved in the design and the development of technical specifications should not be involved in the evaluation of technical submissions by bidders. Previously, design consultants were part of the Technical Evaluation Panel that made a recommendation on the technical part of the tender to the Bid Evaluation Committee. The rationale for the resolution was to ensure that there was a separation and segregation of duties – which is a well-known governance principle aimed at having more than one person/body, and not the same person/body, completing a task in circumstances where irregularities could arise. It is an appropriate control measure that is used to prevent collusion, fraud, conflict of interest, misuse of information and corruption.

It is an important measure because the seemingly innocuous and seemingly innocent process outlined above is extremely dangerous in that it effectively makes the service provider concerned almost the sole determiner of who ends up getting SANRAL’s construction tenders. It flies in the face of a fair, equitable, transparent, competitive and cost-effective procurement. In that circumstance no one could ever guarantee that no collusion may have taken place between the service provider concerned and the bidder determined by that service provider to be technically superior to any other, and therefore effectively the bidder for onward recommendation by the Bid Evaluation Committee.

Now, as an internal control to avoid possible collusion and corruption between the design consultant and bidders; and in line with its obligations to ensure adequate internal controls to protect the organisation; in January 2020 the Board took the resolution referred to above to separate the service provider who draws our designs and specifications from the one who recommends the most appropriate technical bid.

The Board instructed Management to ensure that, as an internal control, these two processes – namely designing drawings and developing technical specs on the one hand, and determining which bidder meets those specs on the other hand – were carried out by two different service providers. This was primarily to avoid the obvious conflict of interest and possible corruption.

We are here today partly because, for reasons yet to be objectively determined, more than a year down the line the Board discovered that that separation was not effected, thus violating an internal control, and so effectively rendering irregular the awards the Board was asked to note by MBAC. Contrary to the Board’s instruction, in all the tenders at issue, the designer of the projects and the developer of the technical specs was also the same individual or entity which decided on the technical bid to be considered for award.

In the light of that violation of a crucial internal control, and in line with its fiduciary responsibility, the Board had no option but to refuse to sanction the planned awards. If the Board had sanctioned the proposed awards, it would have ignored its own resolution and internal control, thus attracting an adverse audit finding against the organisation.

In three of the five cases there were other compelling reasons for the Board’s refusal to endorse award recommendations. We therefore now list the specific lapses and violations, relating to specific tenders, which led to the Board’s obligation not to endorse any of the five bids for award. It is important to reiterate that not all awards are tabled at Board for noting, but only those above the R750m threshold, under which all the tenders below fall:

1. 1. 1. 1. N2 Wild Coast Mtentu Bridge
        Contrary to the Board resolution of 28 January 2020, the same design consultants were involved in the design and the development of technical specifications, on the one hand, and in the evaluation of technical submissions of the bidders with a view to recommending the technical submission to be selected by the Evaluation Committee, on the other hand. No prior approval had been sought from the Board to deviate from the resolution. Therefore, the resolution was not complied with.A bid that should have been considered as non-responsive (and therefore disqualified) because it was not submitted in the prescribed and required format in terms of the specifications was accepted.
        
        The specifications included an increase in the scope of works by virtue of additional roads that were originally planned for community development projects in order to accommodate the 30% subcontracting requirement. This resulted in a deviation from the 30% subcontracting – and, as a consequence there was no 30% subcontracting on the actual project. The deviation was done without the requisite Board approval, which was irregular.
        
        The Board was not comfortable with the concessions allowed to a bidder to provide unsecured guarantees, rather than the contractual retention monies.
        
        There was a concern about the financial sustainability of a recommended bidder.
      2. R56 Matatiele rehabilitation
        Contrary to the Board resolution of 28 January 2020, the same design consultants were involved in the design and the development of technical specifications, on the one hand, and in the evaluation of technical submissions of the bidders with a view to recommending the technical submission to be selected by the Evaluation Committee, on the other hand. No prior approval had been sought from the Board to deviate from the resolution. Therefore, the resolution was not complied with.
      3. Ashburton Interchange
        The proactive assurance, which is applicable to tenders above R750 million, and which is conducted by SANRAL’s Internal Audit, established that a bidder was wrongfully disqualified. It would be the height of imprudence for the Board to allow the awarding of such a tender when the litigation risks from the disqualified bidder are material.
        
        Contrary to the Board resolution of 28 January 2020, the same design consultants were involved in the design and the development of technical specifications, on the one hand, and in the evaluation of technical submissions of the bidders with a view to recommending the technical submission to be selected by the Evaluation Committee, on the other hand. No prior approval had been sought from the Board to deviate from the resolution. Therefore, the resolution was not complied with.
      4. EB Cloete Interchange Improvements
        Contrary to the Board resolution of 28 January 2020, the same design consultants were involved in the design and the development of technical specifications, on the one hand, and in the evaluation of technical submissions of the bidders with a view to recommending the technical submission to be selected by the Evaluation Committee, on the other hand. No prior approval had been sought from the Board to deviate from the resolution. Therefore, the resolution was not complied with.
      5. The GFIP Open Road Tolling tender (Transaction Clearing House Operator)
        There was a reduction of the subcontracting requirement from 30% to 15% without approval by the Board, and before permission was requested from National Treasury.
        
        Contrary to the Board resolution of 28 January 2020, the same design consultants were involved in the design and the development of technical specifications, on the one hand, and in the evaluation of technical submissions of the bidders with a view to recommending the technical submission to be selected by the Evaluation Committee, on the other hand. No prior approval had been sought from the Board to deviate from the resolution. Therefore, the resolution was not complied with.
      Conclusion
      
      In conclusion, this Board is as concerned as everyone in the industry that the cancellation of these tenders will delay the implementation of critical infrastructure projects and possibly impact the construction industry. However, it cannot be said that governance and procurement processes must be compromised at all and any cost. The SOE sector is still reeling from the consequences of cutting corners. Short memories in this regard are unfortunate.
      
      To mitigate the lost time and opportunities, the Board has instructed Management to create the necessary conditions for the tenders to be readvertised legally and allocated within the next four months. Pursuant to ensuring the independence and integrity of a process which has been obviously internally compromised, the Board has also resolved to secure the assistance of an independent public institution with infrastructure procurement expertise to assist with the process of getting the 5 tenders advertised, evaluated and adjudicated for recommendation of award to the Board.
      
      The SANRAL Board is determined to get to the bottom of the lapses and irregularities highlighted and follow up with the relevant consequence management.
      
      SANRAL remains committed to contributing to the development of the nation and its communities. This Board is acutely aware of the role SANRAL plays as a catalyst to drive the economy and the construction industry with projects and work on the national road network. The Board is confident that SANRAL has a professional and competent workforce which can deliver good quality roads which are critically important to provide access and mobility along strategic corridors criss-crossing the country. The Board is also passionate about real and effective transformation across all the sectors in the road construction value chain.