The Black Lawyers Association (BLA) has described as discriminatory and exclusionary the evaluation criteria Eskom used to award a tender for provision of legal services.

The BLA wrote a letter to Eskom in which it requested the power utility to halt the evaluation of the bids as the association was aggrieved by the selection criteria.

This comes after Eskom made a request for proposals for the provision of legal services for a period of three years.

Eskom’s evaluation criteria for the tender include:

• involvement in the inquiry into state capture, corruption and fraud;
• prior experience working with Eskom;
• experience with managing complex legal matters and providing strategic counsel to state-owned companies; and
• a working relationship with regulators within the energy markets, prosecuting bodies and media.

The scope of the work Eskom invited the tender for included reviewing reports, preparing a summary of the reports for Eskom management and the board, providing strategic legal counsel and developing action plans.

According to the BLA, the requirements in the awarding of the tender are inconsistent with the constitutional principles that relate to procurement and transformation.

“The functional requirements are designed to favour very few firms, if not one, that participated in the Zondo commission representing Eskom or its interests that Eskom made common cause with,” said Thato Gaokgwathe, BLA’s head of policy and legislation.

She said the favoured firms would be those that had an existing relationship with the power utility.

“Furthermore, this functional requirement is loaded in favour of what essentially are big law firms with a sprinkling of a few black legal practitioners,” Gaokgwathe said.

She said the requirement that law firms must have been involved in the state capture inquiry excluded most black legal practitioners.

Gaokgwathe described the requirement of previous involvement with Eskom as a “perpetuation of state capture”.

“This is clear from the requirement that the law firm must be one that has previously done all the work that is mentioned in the functional requirements for Eskom.”

Eskom confirmed it had received a request from the BLA to stay the tender evaluation process.

“These averments [that the evaluation criteria are discriminatory and exclusionary] are baseless. The facts speak otherwise,” said Eskom spokesperson Sikonathi Mantshantsha.

“From a contextual perspective, Eskom has 56 law firms on its legal panel, all of whom are 100% compliant with the requirements of the B-BBEE Act. Of these, 44 are 100% black-owned and two are 98% to 99% black-owned. There is also sufficient meaningful legal work at Eskom on which the panel lawyers are briefed daily.

“While Eskom has a panel of law firms that could have been engaged for this work, in the interest of fairness it was decided an open tender for legal services would be issued.

“Based on the large number of responses received, it is clear the tender criteria have not created a barrier to any market sector from submitting tenders. The tender submissions are being evaluated and Eskom cannot comment further.”

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