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The African Procurement Law Unit (APLU) initiated a national conversation on public procurement reform in South Africa during a two-day gathering in Johannesburg from 27 to 28 February 2023.

The initiative is a response to the call of the Zondo Commission of Inquiry into State Capture which noted that “any serious attempt to address the problems which beset public procurement must go well beyond state capture … the process of reform requires a coherent and comprehensive plan of action which needs to bring the public and private sectors together in a joint initiative to restore proper standards and discipline within the procurement system.”

The event drew over 120 delegates from the South African public procurement/supply chain management community to discuss all aspects of public procurement with the aim of framing a vision for the future of public procurement in South Africa. Delegates came from all levels of government, including key national departments such as Treasury; Justice and Constitutional Development; Public Works and Infrastructure; Trade, Industry and Competition and Defence as well as from public bodies such as the NRF; Public Service Commission; SARS; Competition Commission and SANRAL. Suppliers to the government as well as supplier organisations such as Consulting Engineers South Africa and the Steel and Engineering Industries Federation of Southern Africa were present. Participating NGOs included Corruption Watch; the Legal Resources Centre; Amabhungane; Open Ownership, OUTA and the Public Service Accountability Monitor as well as some of South Africa’s leading procurement academics and lawyers.

The topics discussed ranged from the forthcoming public procurement legislation for South Africa, how best to deal with the restriction of poor performing and corrupt suppliers to government, the liability of public officials for procurement failures, the need for the state to buy local goods in order to support local industrial development, how to accelerate transformation via public procurement practices, increased use of technology to improve efficiencies in procurement and to reduce abuse and how best to deal with challenges to tender awards.

Prof Geo Quinot, APLU director and professor of law at SU, noted in his opening remarks that “public procurement is the backbone of service delivery in our country, of making real the aspirations of our constitution, of driving economic development. By coming together, all of us can strengthen that backbone to the benefit of everyone who live in our country.” Click here to listen to the full opening remarks.

The issues raised during the plenary engagements were categorised under five themes and discussed in more detail by smaller working groups. The themes are institutional arrangements; procurement integrity; targeted procurement; procedures & efficiency; and dispute resolution. The South African public procurement community intends to contribute to the ongoing reforms of the public procurement system and following the two-day workshop, the national conversation continues by way of workstreams where delegates will continue to explore the themes raised in the working groups.  For each theme, an issue paper will be collaboratively developed to set out inter alia the nature of the issue, its role in the procurement system, possible ways in which it could be regulated, suggested operating procedures and standard documents, and the skills required to manage the issue. The issue papers will include case studies, from South Africa and beyond, on how the issue has been successfully addressed. These issue papers will be discussed at further gatherings, including another national workshop in June. The outcomes can feed into the public consultation processes that will accompany new procurement legislation, and the crafting of regulations and other implementation instruments under a new procurement statute, once passed. Generally, the initiative aims to assist all stakeholders in improving procurement practice – from the regulators tasked with designing and overseeing the procurement system; to the leadership of organs of state in using procurement as a strategic tool; to procurement officials in their daily acquisition functions; to businesses wanting to supply goods and services to the state.

The South African procurement community believes that by bringing together the experiences of officials awarding tenders, of enterprises selling to the state, of regulators monitoring the spending of public money, of NGOs focusing on the impact of procurement on civil society and of academics researching and training on all aspects of public procurement, the South African society can collaboratively construct a fit-for-purpose procurement system that can deliver best value for money. 

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UNCITRAL Days are a series of events co-organised with institutions of higher learning to raise awareness of the work of UNCITRAL amongst the next generations of legal thinkers and policymakers, thereby furthering its efforts to promote the progressive harmonization and modernization of international trade and commercial law.

The theme of the 2022 UNCITRAL Days in Africa was “Modernization and harmonization of international commercial law framework in the AfCFTA context”.

On 3 November 2022 from 9:00 – 12:30 (UTC+2), the African Procurement Law Unit at Stellenbosch University co-hosted with UNCITRAL an UNCITRAL Africa Day workshop focusing on the public procurement dimension of trade law harmonization in the AfCFTA context.

For more details, including recordings of the presentations, click on the following link.

Despite vast progress in the field of women’s rights, women still experience extreme discrimination in the form of gender pay gaps in workplaces, gender-based violence and harassment and time poverty due to unpaid domestic work. Women in rural areas travel long distances to access fuel and water, they suffer from air pollution caused by heating for the purpose of cooking and cleaning and are in danger based on a lack of lighting at public transport areas and outside public bathrooms. The latter indicates that infrastructure in South Africa does not adequately provide for the needs for women.

Public infrastructure is acquired by way of public procurement, which constitutes approximately 22% of a country’s Gross Domestic Product (GDP). With infrastructure being the bedrock of any country, the procurement of infrastructure holds tremendous economic significance. For the last two to three
decades, procurement has been leveraged to advance many social objectives, including the advancement of women-owned businesses. However, this topic in particular has seen slow development the world over.

This seminar will be based on an upcoming collaborative paper between the academy and practice in the form of UNISA, George Washington University International and Comparative Law Studies and International Budget Partnership South Africa where solutions to advancing women’s rights in infrastructure procurement will be considered. Sanitation access in South Africa’s informal
settlements will be explored as a case for gender-inclusive procurement.

On 7 April 2022, APLU, in collaboration with Crown Agents and the Open Contracting Partnership, hoste an open online workshop to discuss one of the recommendations on public procurement reform in South Africa, put forward by the Judicial Commission of Inquiry into State Capture (the Zondo Commission), viz. the creation of a Public Procurement Anti-Corruption Agency.

In brief, the Commission recommended:

“In the view of the Commission and for the reasons which follow, the appropriate starting point for any scheme of reform must include the establishment of a single, multi-functional, properly resourced and independent anti-corruption authority with a mandate to confront the abuses inherent in the present system. That authority could be called the Anti-Corruption Authority or Agency of SA South Africa (ACASA).”

Judicial Commission of Inquiry into State Capture Report Part 1 (2022) par 664

This recommendation follows the proposal put forward in the draft Public Procurement Bill, published in 2020, for the creation of a Public Procurement Regulator.

Many other countries on the African continent and beyond have created public procurement authorities of various types. These provide rich experiences for South Africa to look at in considering the creation of a procurement authority of some sort.

This workshop hosted leaders from existing procurement authorities in Kenya, Ghana and Chile to share their experiences in setting up and running such entities. It will also create an opportunity for discussing the proposals put forward for creating such an entity in South Africa. More than 200 participants joined the workshop.

Information on the speakers, presentations and recordings of the sessions can be accessed here.

Worldwide there has been an increase in the use of cloud-based computing solutions within the public sector. The International Data Corporation reports that the global public cloud services market grew by 24% in 2020. In South Africa, the recently published draft national policy on data and cloud noted the importance of harnessing the “social potential of data and cloud computing” and put forward a range of policy proposals towards increased adoption of public cloud solutions.

However, it is also widely recognized that a skills gap can be a significant barrier to the effective adoption of cloud-based solutions in the public sector. This skills gap starts with the procurement of cloud services. In a 2019 study conducted by Deloitte in the Australian context, it found that a skills gap and procurement were two major barriers to adopting the use of public cloud by government agencies.

With these considerations in mind, the African Procurement Law Unit (APLU), in collaboration with the School for Data Science and Computational ​​Thinking at Stellenbosch University and Amazon Web Services, convened a roundtable discussion on building capacity in the South African public sector for the procurement of cloud computing. The roundtable, which took place on 8 July 2021, was exploratory in nature. The purpose was to start a conversation between all relevant stakeholders in the public and private sector about how public sector procurement capacity can be developed and strengthened to effectively procure cloud-based solutions. Participants in the roundtable included academics across a range of disciplines and institutions, public sector officials from government departments and public entities, suppliers and consultants.

A recording of the discussion can be found at this link and the presentations can be downloaded here.

It is anticipated that a smaller working group will take the proposals put forward during the discussion forward and convene a second roundtable to put forward concrete proposals to support increased procurement of cloud computing in South Africa.