Public Procurement

Public procurement is the process through which the state acquires goods, services and works needed to fulfil its public functions. Public procurement regulation functions within the tension between the ostensibly private or commercial nature of the activity at hand, that is, the purchasing of goods, services and works in the market, and the public nature inherent in procuring authorities’ existence and powers.

18 Mar 2024 3 min read Dispute Resolution Alert Article

Although, the current principles underpinning South African public procurement are sound, a major problem is that the system is fragmented, without much synergy between the various regulations. As one academic writer, Peter Volmink, has said “South African public procurement is in a state of ‘procurement purgatory’. New rules appear and disappear with alarming frequency, creating uncertainty for procuring entities.” This was also recognised by the State Capture Commission, where Chief Justice Raymond Zondo remarked that: “the sheer number of acts and regulations which addresses procurement issues makes it very difficult for conscientious officials to get a clear understanding of them”.

Acknowledging this, the Minister of Finance introduced the Public Procurement Bill (Procurement Bill) in Parliament on 30 June 2023. The primary aim of the Procurement Bill is to create a single regulatory framework for public procurement and to eliminate fragmentation in laws that deal with procurement in the public sector. As it stands, the Procurement Bill has been passed by the National Assembly and is currently with the National Council of Provinces (NCOP). As it is a Bill that affects the provinces, the parliamentary process requires that it be sent to the provincial legislatures for consideration before the NCOP votes on it. That process is going to take place over the next few weeks, with the Western Cape Provincial Parliament having published its call for comments on 27 February 2024, with a closing date of 8 March 2024.

While the NCOP process may result in changes being made to the Procurement Bill, it is useful to pause and take stock of what is currently contained in the Procurement Bill. This special publication takes a more detailed look at the provisions currently found in the Procurement Bill and unpacks them for the benefit of those who are interested in and are likely to be affected by the unification of public procurement under one statute. This publication includes five articles, each dealing with an aspect or chapter of the Procurement Bill in greater detail.

First, Jackwell Feris and Kelo Seleka explore the provisions in the Procurement Bill that relate to public-private partnerships (PPPs) and, in particular, proposed amendments to the regulations dealing with PPPs. Their article is titled “Unlocking South Africa’s infrastructure development and investment opportunities: Amendments to the PPP regulations“.

Second, Imraan Abdullah and Kelo Seleka look at the extensive preferential procurement framework that the Procurement Bill intends to introduce in “The soon to be ‘new’ preferential procurement framework”.

Third, in “The establishment of the Public Procurement Tribunal”, Tiffany Gray, Vincent Manko, Nomlayo Mabhena-Mlilo and Mukelwe Mthembu discuss the introduction of a new dispute resolution mechanism into matters of public procurement and why this addition will be significant.

Fourth, Vincent Manko and Nomlayo Mabhena-Mlilo discuss the notion of procurement integrity in the Procurement Bill and how it features within the general procurement requirements. Their article is titled “Procurement integrity and general procurement requirements”.

Finally, Corné Lewis, Tendai Jangara and Lerato Motlhabi explain what the Public Procurement Office is and provide an overview of its functions and powers under the Procurement Bill. Their article is titled “What is the Public Procurement Office? Its functions and investigation and prosecutorial powers”.

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