When the Department of Energy called for bids to supply renewable energy to the South African grid, they produced a bid document which described the conditions and information required from bidders.  This was only available to prospective bidders who paid a fee of R15 000, and signed a confidentiality agreement which included the stipulation to “not divulge or distribute any information in respect of this RFP or pass on any copies of this RFP”.

Unusual…

This was unusual in two respects.

Firstly, what justification is there to ask for a hefty fee just to receive an electronic copy of a bid document?  When a bid is submitted, there are costs involved in processing the bid, and so a submission fee would be reasonable.  But not a fee simply to see the bid form and conditions.

Secondly, why the confidentiality agreement?  What reason could there be to prevent NGO’s, researchers, students and civil society from seeing what the Department required from bidders?

Motivation speculation…

While its not possible to know why this attempt at secrecy was made, of concern to us was the possibility that this was an attempt to set an informal precedent.  The nuclear bid process was looming, and we believe that process, if it ever happens, should be transparent.  If the renewable energy bid process was secret, this could be used to justify shrouding the nuclear bid process in secrecy.  So we decided to test the legality of this confidentiality clause.

Meanwhile…

On the ground, copies of the documents spread rapidly.  One bidder who spoke to me was unaware of the confidentiality agreement, and publicly offered to give me (or anyone else) a copy on request.  Of course, although the documents were being studied widely, no-one could publish anything due to the confidentiality clause.

Time for PAIA…

So we contacted the Open Democracy Advice Centre, who as usual assisted us quickly, professionally, and what is more, without charge.  Using the Promotion of Access to Information Act (PAIA), we applied to get a copy of the rebid documents. Because of the attempt at secrecy, we anticipated a refusal, and were interested to see (and of course challenge) the legal grounds for the refusal.

It was therefore a surprise when the PAIA application was granted.  Just one catch…. the Department of Energy was for some reason unable to supply us with an electronic copy of the documents!  Apparently their only option was to make copies of the document, for which they would charge a copying fee of about R1500.  It is hard to think of a reason, other than petty obstructiveness, why it was deemed impossible to simply email a (searchable) copy.

And here it is…

So after a long process of following up, the ‘copying’ fee was paid by an eager student, and eventually a large heavy box arrived.

In the public domain…

So we have received the bid documents, and we were not asked to agree to any confidentiality conditions.  We therefore now place the entire document in the public domain, and anyone wanting access to these documents is welcome to contact us on rebid@koebergalert.org.