The Supreme Court of Appeal (“SCA”) recently addressed a significant procurement issue in Aventino Ecotroopers Joint Venture and Others v MEC for the Department of Roads and Transport Gauteng Province and Others 2025 JDR 1403 (SCA). The case centred on a dispute between Aventino, an unincorporated joint venture, and the Gauteng Department of Roads and Transport (“the Department”). Aventino sought to overturn the Department’s decision to award routine road maintenance contracts, Tenders DRT19/07/2019 and RT21/07/2019 (“the tenders”), to competing bidders.
While Aventino’s challenge touched on several issues, the core question before the SCA was whether the Department lawfully extended the bid validity period.
The Bid Validity Period and the SCM Policy
Delays in finalising procurement often require government departments to seek extensions of bid validity periods. The Department relied on paragraph 4.14 of its Supply Chain Management Policy (“SCM Policy”), which allows the Bid Evaluation Committee (“BEC”) to request bidders to extend validity when adjudication cannot be completed within the stated period. The clause expressly provides that bidders may either agree to the extension or refuse it. If they refuse, or fail to reply, they are treated as non-responsive and removed from further evaluation.
Aventino argued that such disqualification was unlawful: in its view, if any bidder failed to consent, the entire tender should lapse. To support this argument, Aventino drew on precedent, including the Takubiza decision, which dealt with when a tender lapses and the need for unanimous consent to extend validity. Crucially, however, Aventino did not directly challenge the legality of the Department’s SCM Policy itself.
The Court’s Approach
The SCA rejected Aventino’s arguments. It held that because the SCM Policy created a system that expressly allowed the Department to exclude non-responsive bidders, the Department was entitled to continue evaluating the bids of those who consented to the extension. Non-responsiveness, whether through silence or refusal, automatically meant exclusion.
The Court emphasised that while the general principle is that all bidders’ consent is required to extend validity, this is subject to the governing legal framework. In this case, the SCM Policy unchallenged by Aventino, provided sufficient authority for the Department’s approach.
Broader Legal Framework
South African procurement law is anchored in the Constitution and supporting legislation. Public bodies derive their authority to extend bids from these instruments, as supplemented by internal policies.
The Takubiza decision established that without unanimous, timely consent from all bidders, tenders ordinarily lapse once the validity period expires. The Aventino case did not overturn this principle. Instead, it confirmed that where a policy or legislative framework expressly permits extensions without universal consent, such a framework governs the outcome.
In other words, the legality of excluding non-consenting bidders depends on whether the relevant procurement rules allow it. Where no such rules exist, the default remains that all bidders must agree before expiry, failing which the tender lapses.
Timing and Procedural Questions
One area left open in Aventino concerns the timing of responses to extension requests. The Department’s communication to Aventino stated: “we will be extending your bid by 60 days. Should this be unacceptable, you leave us with no alternative but to cancel your bid.” Though phrased in mandatory terms, the Court held that these letters were consistent with paragraph 4.14 of the SCM Policy.
The judgment, however, did not directly address whether responses must be received before the expiry of the original validity period an issue central to Takubiza. This suggests that in the absence of policy provisions like those in the SCM Policy, the Takubiza principle requiring timeous and unanimous consent would continue to apply.
Implications
The Aventino ruling underscores two key points for future procurement disputes:
- Framework matters – Whether a tender validity extension is lawful depends not only on the general principle requiring unanimous consent but also on the particular legislative or policy framework regulating the procurement process.
- Policy must withstand challenge – Where an internal policy permits exclusion of non-responsive bidders, that policy will govern unless its legality is successfully contested.
Thus, while Aventino illustrates that organs of state may, under certain frameworks, extend bid validity without unanimous bidder consent, this approach is not universal. Absent such provisions, the established rule remains: extensions require the consent of all participants before expiry.
