Municipal Bid Appeal Guide

We are appealing a matter to the municipality of Nelson Mandela Bay, in Western Cape South Africa, i would like to show you my argument and ask for your comments and edit on it. We have been declared non responsive for not submitted financial statements. We have submitted an audit review instead of audited financials as we are not required by law to submit a full set of audited financials as our public interest score falls below the threshold

We are writing to formally appeal the decision communicated in your letter dated *-*-*, regarding our bid submission for the SCM/*/G/*-*: SUPPLY AND DELIVERY OF PLASTIC REFUSE BAGS (Contract No: SCM */G). Our bid was deemed unsuccessful due to the stated reason that no financial statements were submitted. We acknowledge the importance of compliance and risk considerations with tender requirements and strive to meet all stipulated criteria. However, we are concerned that we might be unfairly prejudiced. To our knowledge we have complied with all specification and requirements of this bid and there was no communication or clarification sought during the *-month evaluation period besides an extension of validity. The lack to reasonably clarify for any information further significantly impacted our ability to address any ambiguity. In accordance with Section * of the Local Government: Municipal Systems Act & Regulations, we would like to submit this appeal for your consideration. Below are the details required to support our appeal: a) GROUNDS OF APPEAL i) We believe the decision to reject our bid on the grounds of not submitting financial statements was made in error not on our side, and that therefore believed to being prejudiced. We confirm that financial statements were included in our bid submission packet, as per the requirements outlined in the tender documents and as we have indicated so in Section MBD *: page */*. ii) No opportunity was provided to clarify or rectify the alleged omission of financial statements before the decision was made. Once documents are submitted to SCM, we have no control over their handling, making it essential that any ambiguities be addressed before final decisions are rendered. iii) As per the NELSON MANDELA BAY METROPOLITAN (NMBM) SUPPLY CHAIN MANAGEMENT POLICY VERSION *, section *.*.a, "Bid Documentation for Competitive Bids" requires that bidders who are required by law to prepare annual financial statements must submit these statements. Wastewant Plastics is not required by law to compile annual audited financial statements, only Annual Review as we submitted, and which is readily available. The NMBM SCM Policy *, Section *.*.a reiterates the “if the bidder is required by law…” iv) Furthermore, we would like to emphasize that the absence of the financial statements, as alleged, has no material impact on our bid as it does not have any material deviation on the sample provided, scope, quality, the final price, or ability to perform. v) Lastly, it is worth noting that we have consistently met the requirements as a supplier in previous RFQs for NMBM this year and have successfully supplied the NMBM for similar products on multiple occasions. Our proved track record demonstrates our reliability and capability to fulfil the contract in question. b) DOCUMENTATION PROVIDED i) We kindly request evidence thus access to view our bid document in person. ii) Access to all evaluation records, (BEC, BAC minutes and documents), to verify that our financial statements were not submitted. This will help us understand the basis of this decision and provide any necessary clarification. c) FACTS AND CONCLUSIONS OF LAW i) FACTS: • The grounds of our appeal are based on the fact that we have no reason to omit or withhold the said financial statements except in the case of privacy which we believe is not the case here (see section iii). We believe we complied with all the requirements to the best of our knowledge, including the submission of Annual Reviewed Financial Statements. • The fact is that our financial statements are readily available and can be sent in hard copy or e-mail should additionally it be required. ii) PAJA ACT * OF *: Furthermore, our appeal is based on the request for reasonable and fair treatment as per The Promotion of Administrative Justice Act * of * in which The Bill of Rights Section * states (*) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. (*) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. If any documentation was overlooked or misplaced during the evaluation phase, we believe it would be unjust to disqualify our bid without allowing us the opportunity to address any discrepancies through clarification. iii) POPI ACT of *: In some cases, we opt for “Financial Statements to be provided on request” where financial statements are requested in bid documents by municipalities due to the rare occasion it is requested and privacy concerns under protection by the Protection of Personal Information Act (POPI Act), *, Chapter *: "personal information means information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to— (b) information relating to the education or the medical, financial, criminal or employment history of the person.” As a request for financial statements are deemed highly confidential and would usually be requested by a third-party auditors or due diligence team upon clarification in the evaluation of a tender. We take cognisance of the risk that municipal officials on the evaluation panels may hold positions that might compromise our privacy thus we opt to privacy where possible. iv) NELSON MANDELA BAY METROPOLITAN (NMBM) SUPPLY CHAIN MANAGEMENT POLICY V7: Section *.*.a. “If the value of the transaction is expected to exceed R10 million (VAT included), require bidders to furnish - (a) if the bidder is required by law to prepare annual financial statements for auditing, his audited annual financial statements - i. for the past three years; or ii. since establishment, if established during the past three years;” Wastewant Plastics is not required by law for an audit, an Annual Reviewed Financial Statements is sufficient. Please can you make comments or recommendations on my appeal above