APLU comments on South Africa’s Public Procurement Bill 2023

APLU and its associated researchers made several submissions to the Standing Committee on Finance (National Assembly) and the Select Committee on Finance (National Council of Provinces) of the Parliament of the Republic of South Africa on the Public Procurement Bill 2023 that is currently being processed by Parliament.

The National Assembly Standing Committee on Finance called for public input on the Bill to be submitted by 11 September 2023. It also held public hearings on the Bill on 12 and 13 September 2023.

APLU made a detailed submission to the Committee on the Bill, including proposals for revision of various sections in the Bill. Prof Geo Quinot appeared before the Committee on 13 September to talk to APLU’s submission. In his presentation, Quinot focused on three key objectives and three specific aspects of the text of the Bill. On objectives, Quinot noted the need to

  • ensure consolidation of procurement law under the Bill and called for construction procurement to be fully and exclusively regulated under the Bill and for limited secondary instruments to be issued under the Bill;
  • focus specifically on section 217 of the Constitution as the explicit point of departure of the Bill; and
  • create a clear, unambiguous framework for development through procurement in the Bill, including the use of procurement for transformation and ensuring value for money in procurement.

Quinot highlighted the following three aspects of the text of the Bill that required more attention:

  • Section 2: The current formulation of the objects of the Bill in section 2 is not clearly aligned to section 217 of the Constitution. Since the Constitution, and particularly section 217, is the foundation of this Bill, the objects clause should clearly state the Bill’s objects in terms of the principles set out in section 217. It is furthermore inappropriate to force the objects of the Bill through the lens of uniform treasury norms and standards as provided for in section 216 of the Constitution. This approach does not recognise the distinction made by the Constitution between treasury norms and standards under section 216 and procurement regulation under section 217.
  • The framework for regulating procurement operations under sections 5, 6, 7, 8, 18 and 58 is not clear enough. There are many uncertainties regarding who must do what and who can intervene in what aspect and to what extent under these provisions. Roles and responsibilities must be much more clearly and with more precision defined. In this respect, procurement institutions should be given more discretion to design operational systems appropriate within their context subject to appropriate regulatory guardrails. This requires setting out the broad contours of matters such as procurement procedures in the Bill and regulations, but allowing institutions to flesh those procedures out in a context-appropriate manner without unduly hampering discretion.
  • Section 17: The Bill is not sufficiently clear on the transformational dimension of procurement, including preferential procurement. The current wording leaves too many questions that may simply again lead to litigation. There is a need to tighten this provision so that it clearly states that the Minister of Finance has the power to prescribe the preferential procurement policy to be followed, in order to achieve consistency at a policy level on how preferential procurement must be approached, and leaving only implementation to procuring institutions.

APLU’s full submission can be accessed at this link. Prof Quinot’s oral submissions to the Committee can be viewed at this link.

In a second submission, APLU outlined the output of the national conversation on public procurement reform that it facilitated since February 2023. This project involved convening all stakeholders in public procurement in South Africa to discuss the future of South African public procurement in a host of in-person workshops and offline workstreams. The full submission can be accessed at this link. More details on this project, are available at this link.

APLU associated researcher, Prof Annamaria la Chimia, director of the Public Procurement Research Group at the University of Nottingham in the UK, also made independent submissions to the Parliamentary Committee on the Bill. In her submission as well as during her appearance before the Committee on 12 September, Prof La Chimia placed specific emphasis on gender-responsive procurement and what aspects of the Bill should be refined in order to promote greater participation by women in public procurement in South Africa.

Prof La Chimia’s oral submissions can be viewed at this link.

The National Council of Province’s Select Committee on Finance called for public input on the Bill to be submitted by 22 February 2024, followed by public hearings on 23 February. APLU again made submissions to the committee, highlighting remaining concerns. These focused on potential continuation of the fragmentation of South African procurement law, the need to anchor the Bill squarely in the principles of section 217(1) of the Constitution, the compatibility of the Bill with South Africa’s public finance paradigm and system of co-operative government between the three levels of government and concerns around capacity and professionalisation. The full written submission can be viewed at this link and the oral submission can be viewed at this link.

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