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Question Bank
Question
What is the fundamental principle that guides a constitutional court's intervention in the decision-making process of an administrative authority regarding the award of a tender or contract?
Solution
The fundamental principle is judicial restraint. Constitutional courts do not act as appellate authorities over the decision-making process of an administrative body. The court's primary role is to examine whether the process was fair, legal, and not arbitrary or irrational. A court cannot interfere with an administrative decision merely because it feels another view is possible or that the decision is faulty or erroneous. Intervention is permissible only if the decision is so perverse that no responsible authority acting reasonably and in accordance with law could have reached it, or if the process is mala fide or intended to favour someone.
Question
Explain the legal standard of "perversity" that must be met for a court to overturn an administrative decision in a tender matter?
Solution
The standard of perversity is a very high threshold for judicial review. It is not met by a simple error in judgment. A decision is considered perverse only if it is so overwhelmingly contrary to the evidence, the terms of the tender, or established logic that it appears to be irrational and indefensible. It implies a degree of unreasonableness that is so pronounced that it borders on absurdity. The court must be convinced that the administrative authority's interpretation or conclusion was not just incorrect, but one that no reasonable person or authority, properly informed, could have arrived at.
Question
What is the significance of the "doctrine of implied powers" in the context of statutory interpretation and administrative authority?
Solution
The doctrine of implied powers is a principle of statutory interpretation which holds that when a statute grants a specific power or jurisdiction to an authority, it implicitly grants all other powers that are necessary and incidental to make the express grant effective. This means that for a statutory power to be fully and effectively executed, all reasonable and essential means to achieve that end are deemed to be included within the grant of power, even if not explicitly stated. This doctrine ensures that the legislative intent is not defeated by a mere omission of minor details in the statute.
Question
What is the legal rationale for a constitutional court deferring to the interpretation of tender documents by the employer or owner of a project?
Solution
The legal rationale for this judicial deference is that the employer or owner of a project, having authored the tender documents, is the best person to understand and appreciate its specific requirements. They possess the technical and commercial expertise to interpret the clauses in the context of the project's needs. The constitutional court, lacking this specialized knowledge, must respect this understanding unless it is proven to be mala fide, perverse, or intended to favour a particular bidder. This principle ensures that courts do not substitute their own commercial judgment for that of the expert administrative body.
Question
Why is it considered important for all eligible bidders to be made parties to a legal proceeding challenging the award of a tender?
Solution
It is a vital principle of natural justice to implead all eligible bidders in such proceedings. These bidders have a direct and substantial commercial interest in the outcome of the tender process. They may possess crucial information, such as additional grounds for the ineligibility of the challenger that the employer might have overlooked. Excluding them risks a one-sided adjudication and prevents the court from having a complete picture. Ensuring their participation upholds procedural fairness and allows for a more robust and informed decision on the merits of the challenge.
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