Court documents also reveal that, after Eskom\u2019s executive tender committee had recommended Westing\u00adhouse, the utility\u2019s then acting chief executive, Collin Matjila, and its then technology and commercial executive, Matshela Koko, had pushed for a counter-recommendation for Areva.<\/p>\n
- \n
- Read: Was R4-billion nuke tender hijacked?<\/a><\/strong><\/li>\n<\/ul>\n
Following the secret ballot, the then board tender chairperson, Neo Lesela, and the board\u2019s chairperson, Zola Tsotsi, wrote to Public Enterprises Minister Lynne Brown, outlining seven \u201cstrategic criteria\u201d, which the committee had considered when it made its decision.<\/p>\n
Brown told them she was satisfied with their decision.<\/p>\n
But the appeal court found that each criterion was introduced after the tender criteria had already been set and were, therefore, inserted unlawfully into the process.<\/p>\n
The court ruled that, \u201cwhere an administrative body [such as Eskom\u2019s board tender committee] takes into account considerations that are extraneous to the tender evaluation criteria, as set out in the invitation to bid, its decision to make the award is unlawful and procedurally unfair\u201d.<\/p>\n
It further ruled that, if Eskom still considers the strategic considerations it used to justify the award to Areva as crucial, then it should start the tender process again, with the considerations stated up front.<\/p>\n
The court also awarded Westing\u00adhouse\u2019s hefty legal bills to Eskom, which come on top of its own.<\/p>\n
At the time of going to print, Eskom and Areva both said they were still studying the judgment and would comment in due course. In a brief statement, Westinghouse said it \u201cwelcomed\u201d the judgment.<\/p>\n
The department of public enterprises, responding to questions on Thursday, said: \u201cMinister Lynne Brown has noted the decision of the Supreme Court of Appeal and is studying the judgment and its potential implications to Eskom and in particular the future of the security of electricity supply.<\/p>\n
\u201cIn respect to all other issues raised, the minister would do a thorough analysis of the tender process that was undertaken as well as the relationship between Eskom, Dentons and Areva.<\/p>\n
\u201cWith regard to the Dentons report relating to the investigation of the Eskom executives, the department did respond to the PAIA request submitted by M&G and minister is informed the request for the report is being handled between Eskom and M&G<\/em>.\u201d<\/p>\n
Work has already begun, so what now?<\/h4>\n
The Supreme Court of Appeal ruling puts Eskom in a bind. Reissuing the tender from scratch would mean it would take about six months before it can be awarded.<\/p>\n
But the maintenance work at Koeberg is already dangerously behind schedule, so the alternative to reissuing the tender could be for Eskom\u2019s tender committees to review the original tender scores and recommendations. To comply with the court order, they would need to do so without introducing strategic considerations \u2013 a\u00a0situation that would probably favour Westinghouse.<\/p>\n
But there is now the added complication that Areva has already done 15 months\u2019 work on replacement steam generators and would presumably sue Eskom for any breach of contract.<\/p>\n
Areva told amaBhungane in September that it had \u201cstarted with the forging operations to replace parts of the steam operators\u201d and that \u201cmanufacturing operations [had] also started at Chinese subcontractors\u201d.<\/p>\n
Eskom might also consider extending an olive branch to Westinghouse by inviting them to perform some of the steam generator work at Koeberg \u2013 but this would require both nuclear vendors to give up what they might consider their legal right to the entire contract.<\/p>\n
* Got a tip-off for us about this story? Click here<\/a>.<\/em><\/p>\n
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<\/a>The M&G<\/em> Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za <\/a> for our stories, activities and funding sources.<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"Eskom\u2019s “irrational and unlawful” nuclear tender process means it will have to reconsider the issue yet again<\/p>\n","protected":false},"author":2,"featured_media":22715,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-4200","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-stories"],"acf":[],"_links":{"self":[{"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/posts\/4200","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/comments?post=4200"}],"version-history":[{"count":1,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/posts\/4200\/revisions"}],"predecessor-version":[{"id":30761,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/posts\/4200\/revisions\/30761"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/media\/22715"}],"wp:attachment":[{"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/media?parent=4200"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/categories?post=4200"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/tags?post=4200"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}