Telkom wins Supreme Court of Appeal case
The matter between ZTE Mzansi and Telkom was concluded today in favour of Telkom, South Africa’s fixed-line incumbent announced in a press release today (18 March 2013).
According to Telkom, its procurement policy and process of applying it was upheld today when the Supreme Court of Appeal set aside the North Gauteng High Court’s interim interdict against it.
The appeal was upheld with costs, Telkom said.
In March 2012, Telkom was interdicted from implementing the tender for Multi Services Access Node (“MSAN”) provision and concluding any service level agreement with the successful bidders. This was pending the outcome of an arbitration between Telkom and ZTE Mzansi.
Telkom is using MSANs to offer very-high-bitrate digital subscriber line (VDSL) services of up to 40Mbps, as well as trialling fibre-to-the-premise services.
Telkom explained that during July 2011, it published a tender (RFP 0328/2011) for the provision of MSANs. ZTE Mzansi had submitted a bid but was not short-listed because it failed to meet certain critical technical criteria during the evaluation process.
Telkom awarded the RFP to Huawei and Alcatel-Lucent Technologies on 21 November 2011, and said its procurement process was validated by external auditors.
During January 2012, ZTE served an application on Telkom trying to prevent the company from implementing the tender in terms of an interim interdict. Telkom and Alcatel-Lucent opposed the application.
In May 2012, the North Gauteng High Court granted Telkom leave to appeal to the Supreme Court of Appeal against the interdict.
Telkom said that the Supreme Court of Appeal held that it would be an un-businesslike construction and absurd if Telkom was obliged to resolve disputes with multiple bidders by arbitration with varying awards before it could safely implement an award.
In addition the Court confirmed that no contractual relationship is created when a bidder submits a tender in response to an invitation to do so, Telkom said.
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