04 April 2024

Caption: The Bill is not clear which body holds the power to carry out certain aspects. 

The following three-part article is written by Vishaal Lutchman, Vice President of the South African Institution of Civil Engineering (SAICE). This is the final part.

…continued from Part 2.

The Bill gives the National Treasury, the Public Procurement Office and organs of state significant regulatory making powers, instead of providing concrete rules for implementation. This could be problematic as most of the rules that have to be followed or applied will be contained in various pieces of subordinate legislation and may be inconsistent across public sector agencies. It is unclear when these subordinate pieces of legislation will be provided to the public for meaningful input. Key legal requirements for all procurement systems should be contained in the Bill and not left to subordinate regulations and/or policies, where these legal requirements may be subject to watering down, softer interpretation and/or regular reform.

Given that government has not been able to manage its capital outflow efficiently, coupled with the nationwide enforceability of the Bill, it should provide clear, unambiguous, accurate and consistent definitions and other core concepts, that in its current form is lacking. It suggests that that compliance to existing regulations is insufficient to make the inroads needed to make progress towards an egalitarian society.

Furthermore, those responsible for adhering to public procurement laws may well feel daunted by the litany of laws, or just pay lip service to them in departments and entities that have weak leaders, processes, checks and balances. This situation can lead to abuse by individuals and tenderers who prey on weak leaders managing procurement systems.

Nor, in our opinion, should interpretation be left to the discretion of the Minister. In other parts, the Bill is not clear which body holds the power to carry out certain aspects. For example, it is not clear who establishes the procurement “policy” that an organ of state will implement.

In principle the Bill is correct but lacks a multi-dimensional view of all its affected participants, lacks collaboration and consistency, has not undergone any confirmation testing or details of how it will provide value for money. As such a fundamentally important piece of legislation, it is more than appropriate that it must be phased in, offering the potential of fine tuning.

In addition, the Bill does not stand on its own and there are enabling initiatives required to give meaningful effect to the intention of the Bill. It has become more apparent that procurement is being used for showcasing agencies.

Public sector clients put bids into market with no intention of awarding or no budget for transactions, that is in contravention of the PFMA, for example. If this is not addressed, there will be transactions with low thresholds that do not screen quality meaningfully with the singular focus on objectives of ownership and price with no sense of quality. These are just some of the practicalities in addition to maleficence, that does not appear to be addressed. Overall, there could be a greater level of strategic foresight with regard to economic growth, sustainability and overall pragmatism that may have given an improved opportunity to achieve the intentions indicated in our Constitution.

SAICE, through our members, is a major influencer in the construction sector – a significant contributor to employment and major contributor to the national economy – and implores government to engage with the key stakeholders in the construction sector in ensuring that the revised Public Procurement Bill addresses our country’s real socio-economic dilemma.

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