THE Gauteng Health Department has again been hauled to court, accused of awarding a multimillion-rand medical waste tender that is believed to be irregular and unlawful to their preferred candidate during the procurement process.
Buhle Medical Waste recently applied for an urgent interdict at the Johannesburg High Court to stop the awarding of more than R500 million to Tshenolo Waste and Phuting Medical Waste Management meant to collect and dispose of waste.
Tshenolo Waste secured a R314m contract to service Tshwane and Johannesburg, while Phuting Waste recorded a R211m contract for the West Rand, Sedibeng and Ekurhuleni, in the R525m tender bid.
Chief among its arguments to the court, Buhle Waste – which lost the tender bid – argues that the department did not consent to all the bidders that it was willing to extend its validity date from September 28 to October 27 for the three-year tender contract to provide waste services.
Another argument by Buhle Waste, which was contracted in 2015, is that the department has always failed to meet its financial obligations towards their current contract, compelling them to halt its services to hospitals across the province in February last year.
Independent Media reported last year that the waste company withheld its services after the department failed to pay over R27m for more than two years which plunged services in disarray with garbage piling up at the province’s hospitals.
Applicant Evelyn Masedi for Buhle Waste asked the court to consider an order preventing the two companies from starting their services pending the outcome of a judicial review which Buhle Waste had previously applied for, her founding affidavit stated.
She said as the head of the company her hand was forced to approach the court after the department “chose to confuse and conduct itself secretly”.
She further said that all the bidders were not consulted in time to consider their options because the department only gave them one day after they decided on the extension date.
“Once the department committed itself to a legal process of extension, it was bound by it … Even though the department now belatedly and contradictorily contends that the extension was not necessary, the reality is that once it committed itself to a course of action, unless it seeks to review it and set it aside, it needs to comply therewith. This is a trite proposition of law. Without more, the tender has lapsed,” she said.
According to Masedi, the department “behaved splendidly in respect of its own extension that it now contends was not necessary.
“Apart from the fact that regardless of what the department says is now the true and correct state of affairs regarding the extension, the department is not allowed to ignore it.”
Both Tshenolo and Phuting challenged Masedi’s application, denying that the tender had lapsed.
In their court papers, Tshenolo Waste representative director Tshepiso Ramonyadiwa wrote: “Considering the contents of the applicant’s founding affidavit, the applicant does not seek to challenge the request that the department made to the bidders to extend the validity period of their own bids.
“The letter that the department sent to bidders requested them to extend the validity period of their own bids and not of the tender process.”
In their replying affidavit, the department opposed the applicant’s legal challenge, saying that it was not legally possible to stop the department from awarding a tender.
“This relief is an interim interdict. I am advised that interdicts concern themselves with the future and not events that have already occurred. Curiously, the applicant seeks this final order without the record and does not seek the record in Part A.
“This order is sought on speculative grounds and innuendo without verified facts in the applicant’s own version. This is entirely untenable.
“On the applicant’s own version, on September 15, 2023, it was aware that there were two successful bidders, and on September 11, 2023, a publication was issued by the department where the names of both successful and unsuccessful bidders appeared.
“It is surprising as to why the applicant would bring an application and pretend as if the tender has not yet been awarded and prefer to bring this application on speculation grounds,” said the department.