After over twenty years in bid and proposal management, I have learned that success is not defined solely by scoring the highest points. In public procurement, compliance is not a box to tick – it is the foundation that
legitimises your win.
The recent case of Aventino Ecotroopers JV v Gauteng Department of Roads and Transport and Others (820/2022) [2024]ZASCA 15 (14 February 2024) is a powerful example of what can go wrong when bidders focus on commercial strength but overlook legal precision and due diligence.
Aventino submitted the highest-scoring bids for two road maintenance tenders issued by the Gauteng Department of Roads and Transport. By all technical and pricing indicators, they should have secured the awards. However, they were disqualified due to pending allegations of fraud and the possibility of being listed as a restricted supplier. The tenders were subsequently awarded to lower-ranked bidders. Aventino challenged the decision in court, arguing that the tender validity period had expired and that their disqualification was therefore unlawful. The Supreme Court of Appeal disagreed, finding that the Department had lawfully extended the validity period and that Aventino’s failure to challenge the disqualification decision directly was procedurally fatal to their claim. This case provides a critical roadmap of what went wrong and why it matters.
1. Validity periods are binding, not flexible guidelines
If your offer expires, any award made afterwards must be based on a lawfully extended validity period. In Aventino’s case, the court found no procedural error in managing the extension. Because Aventino did not object to the extension when notified, their right to later contest it was lost.
Lesson: Always monitor validity extensions closely and respond formally. Silence or delay canstrip you of the right to object later.
2. Procedural priorities: Challenge disqualification first
Aventino mistakenly contested the contract award without first challenging their disqualification. The court was unequivocal: you must first overturn the disqualification before you can dispute the award itself.
If a bidder believes their disqualification was unjust, they must promptly seek a review of that decision through available administrative or legal avenues. This typically means:
- Submitting a formal objection or internal appeal to the contracting authority within the prescribed timeframe;
- Initiating an application for judicial review in the High Court to have the disqualification set aside, particularly where there is no internal remedy or where it has been exhausted.
Acting swiftly is critical, as delays can result in a loss of standing or rights. Legal advice shouldbe sought immediately to structure a challenge correctly.
Lesson: Respect the sequence of legal remedies. Ignoring correct procedural steps can undermine even the most commercially compelling bid.
3. Compliance as a strategic imperative
Even though the allegations against Aventino were pending and not proven, the Department acted within its rights to disqualify them. Under Section 38(1)(c)(ii) of the PFMA, accounting officers must prevent irregular or wasteful expenditure – including engaging with suppliers that pose compliance risks. At nFold, our bid compliance framework ensures that clients don’t just meet legal requirements but anticipate regulatory scrutiny – mitigating risks before they undermine a winning bid.
Lesson: Your governance status, track record, and risk profile are central to your competitiveness, not side issues.
The Aventino case shows a strong technical score cannot redeem a procedurally flawed bid. In public procurement, even the appearance of risk is enough to remove you from contention.
As bid professionals, we are not just helping clients win. We are helping them win lawfully, credibly, and sustainably. That is why compliance cannot be an after thought. It must shape the bid from the inside out.
If your team submits bids with compliance as a secondary concern, this case should be a wake-up call.
Lesson: No matter how great your value proposition, technical solution or pricing, you must ensure you can comply. Failing to do so risks your reputation and chances of winning. Remember that next time you try to avoid submitting 3-year financial statements or a valid CSD report.
Ready to futureproof your next bid? Partner with nFold to embed compliance into your bid strategy from day one. Reach out to us for expert support that safeguards both your win rate and your reputation.
