When Do Tenders Expire? Lessons from the Aventino v MEC for Roads and Transport SCA Judgment on Bid Validity Extensions

Written By: Sipho Nkosi (Senior Associate)

In the recent Supreme Court of Appeal (“SCA”) case of Aventino Ecotroopers Joint Venture and Others v MEC for the Department of Roads and Transport Gauteng Province and Others 2025 JDR 1403 (SCA), the Appellants, an unincorporated joint venture referred to as “Aventino”, appealed against a decision of the High Court, Johannesburg, in which the court a quo dismissed Aventino’s application to review and set aside the Department of Roads and Transport, Gauteng Province’s (“the Department”) decision to award tenders DRT1 9/07/2019 (Tender 19) and RT21/07/2019 (Tender 21) (“the tenders”) to the Second and Third respondents (“the successful bidders”), and the subsequent service level agreements entered into with them, for the management and execution of routine road maintenance on selected provincial roads.

The crisp question that the SCA was called upon to determine, for purposes of this article, was the validity of the extension of the bid validity period. Prior to finalizing the tender process, the Department sought several extensions from the bidders. The extensions were sought in terms of paragraph 4.14 of the Department’s Supply Chain Management Policy (“SCM Policy”) which provides that the Bid Evaluation Committee (“BEC”) shall, when the evaluation or adjudication of a bid is envisaged to go beyond the validity date in the bid documentation, request bidders to extend the validity of their bids. Importantly, it provides that bidders may either accept or reject the extended validity period and those who do not wish to extend the validity period would be regarded as non-responsive and would be excluded from further assessment.

Aventino’s challenge, amongst others, was that if a bidder failed to respond to an invitation to extend the validity period of the tender, the Department could not disqualify that bidder and then proceed to consider the bids of those who agreed to the extension; instead, the tender lapsed. It relied on several authorities, such as Takubiza[1], which not only speaks to the circumstances of a tender lapsing, but also to the timing of the lapse. Aventino, did not, however, challenge the provision in the Department’s SCM Policy.

The SCA dismissed Aventino’s challenge on the basis of the provision in the Department’s SCM Policy which creates a regime that permitted the Department to exclude bids from further consideration in the event that a bidder either declined to extend its bid or failed to respond to the Department’s invitation to extend. Therefore, the failure by any bidder to respond, or to respond and reject the extension, meant automatic disqualification from further assessment.

On the one hand, the validity of an extension of the bid validity period is a multi-faceted, and is not a one-dimensional approach. It varies from one organ of state to another depending on the structure of the constitutional and legislative framework and the provisions empowering an organ of state to seek an extension of the bid validity if some delays are envisaged prior to finalizing the tender process.

On the other hand, there appears to be trite law which governs the circumstances and the timing of a lawful extension of the bid validity period. Simply put, to extend the tender validity period, the consent of all the participants to the tender process is required. Unless there is a timeous request and favourable response from all the tenderers prior to the expiry of the tender, the tender comes to an end.[2]

In the Aventino case, the SCA affirmed the constitutional and legislative procurement framework which determines the powers of public bodies to procure goods and services. It held that the power to extend a bid, within the bid validity period, is disciplined by this framework.

In the circumstances of the Aventino case, it seems to us that the Court did not move away from or overturn the decision of the SCA in the Takubiza case and in fact, affirmed it. The position would be as follows: the constitutional and legislative framework and provisions applicable to an organ of state seeking an extension of the bid validity period are instructive insofar as an extension of the bid validity period is sought. In the Aventino case, the provisions of paragraph 4.14 of the Department’s SCM policy, had the effect of rendering the implications of the Takubiza decision inapplicable in those circumstances because of its structure. This is also so because there was no successful challenge by Aventino on the legality of the SCM Policy which enabled the Department to lawfully extend the bid validity period.

However, if the constitutional and legislative framework and the provisions upon which an organ of state relies on to seek an extension of the bid validity are not structured in such a way that enables it to move away from seeking consent of all participants to the tender process, and unless there is timeous request and favourable response from all of the tenders prior to the expiry of the tender, then the tender would come to an end. Similarly, the position would be the same if there was not a successful challenge to the legality of the constitutional and legislative framework and provisions.

It is trite that all requests for the extension of the bid validity period must be made prior to the expiry of the period. This is so because once a bid validity period has expired, there is nothing to extend. Whether, what and when an organ of state requires a response from the participant will depend on, amongst other things, the structure and application of the constitutional and legislative framework and empowering provisions.

It appears that the Aventino judgment did not delve into the timing of, in particular, the responses to the Department’s request to extend the bid validity period and when they had to happen. This is supposedly so because the Department’s letter to Aventino had stated that, ‘we wish to inform you that we will be extending your bid by 60 days. Should these (sic) be unacceptable, you leave us with no alternative but to cancel your bid.’ The SCA held that while cast in peremptory language, the letters were consistent with the provision of the Department’s SCM Policy.

It is unclear to us whether, in the absence of the constitutional and legislative framework and provisions akin to the Department’s SCM Policy and their peremptory language, the Takubiza decision would still apply as a fallback position, or not. The Court however, affirmed Takubiza's decision that to extend the tender validity period, the consent of all the participants to the tender process is required.

Broadly speaking, the implications of the Aventino judgment would mean that organs of state would be able extend the bid validity period without having to address letters requesting an extension and require all bidders to respond before the expiration of the bid validity period. However, an important proviso is that the organ of state would be required to rely on constitutional and legislative framework and provisions structured similar to the Department’s SCM Policy without a successful challenge to the legality of such framework and provisions. If such a provision is structured as in the Department’s SCM Policy, it appears that the implications of the Aventino case would deal with the circumstances and the timing of an extension of a bid validity period.

[1] City of Ekurhuleni Metropolitan Municipality v Takubiza Trading & Projects CC and Others (846/2021) [2022] ZASCA 82

[2]  Cited with authority on paragraph 14 of the Aventino judgment.