Workshop on Public Procurement Authorities

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.

New study on gender equity in public procurement in South Africa published

A major research study by APLU’s Prof Sope Williams-Elegbe on equity and inclusion of women-owned businesses in public procurement in South Africa has been published by the Open Contracting Partnership.

Equity report coverThe summary of the report states:

“South Africa’s President Cyril Ramaphosa has committed to setting aside 40% of all government procurement for women-owned businesses (WOB). This report analyses the barriers and the opportunities for WOBs in the South African post-Covid-19 procurement system. In researching the report, we interviewed WOBs, procurement and supply chain managers, regulators, and other stakeholders, and we reviewed the main academic and policy literature on the inclusion of WOBs in public procurement in South Africa and beyond. The report also describes the legal and policy framework for preferential treatment in public procurement in South Africa, barriers to advocacy, and lessons from the Black Economic Empowerment framework, and it makes recommendations aimed at boosting WOBs’ participation in public procurement in South Africa.

The misalignment between South Africa’s economic, gender, and procurement policies and issues related to the focus on “black women” in the preferential procurement legislation is one of the policy and legal barriers. However, institutional and cultural barriers pose more of an obstacle to women’s participation in procurement. Public agencies are reticent to prioritise WOBs in the absence of an explicit mandate to do so and are reluctant to favour new market entrants and small, medium, and micro-enterprises (SMMEs).

Other barriers include the gendered impact of procurement corruption, the gendered impact of Covid-19, which has terminated public contracts in sectors serviced by WOBs, high rates of gender-based violence, and the complexity and opacity of the procurement process. In addition, WOBs in South Africa face financial limitations, inadequate contractor development initiatives, and an inability of the public sector to identify WOBs in relevant sectors.”

The report makes a number of key recommendations on enhancing woman-owned business’ participation in public procurement in South Africa:

  1. The South African government should create a comprehensive policy and regulations to implement gender-responsive procurement.
  2. The government should incorporate an inclusive definition of WOBs covering all women, in line with the International Organization for Standardization’s International Workshop Agreement definition.
  3. The government should implement measures to address transparency, complexity, capacity, and accessibility concerns.
  4. South African government entities should adopt a more integrated and long-term approach to the support and development of WOBs, including training for business owners and employees focused on “soft” skills, such as personal initiative training.
  5. South Africa needs an advocacy and awareness campaign to promote public understanding of the benefits of gender-inclusive procurement.

The report can be accessed on the Open Contracting Partnership website.

 

Public Procurement: Global Revolutions XI dates set for 2022 and call for papers out

The Public Procurement Research Group (PPRG) at the University of Nottingham will in 2022 again host the major international conference on public procurement law: Public Procurement: Global Revolutions XI. The dates for the conference, that will take place in person in Nottingham, have been set for 13-14 June 2022.

PPRG GRXI

As in the past, APLU will support the PPRG in this major international event.

The call for papers has been published and can be accessed at this link.

Visit the conference website at www.grppconference.com for more information and updates.

New book focusing on public procurement during the COVID-19 pandemic

Covid19 Book Cover 2021Hart Publishing published the title Public Procurement Regulation in (a) Crisis? Global Lessons from the COVID-19 Pandemic in November 2021. The book was edited by Sue Arrowsmith, Luke RA Butler, Annamaria La Chimia and Christopher Yukins.

The book provides the first systematic analysis of global public procurement regulation and policy during and beyond the COVID-19 pandemic.

Through both thematic chapters and national case studies, the book:
– explores the adequacy of traditional legal frameworks for emergency procurement;
– examines how governments and international organisations have responded specifically to the pandemic; and
– considers how the experience of the pandemic and the political impetus for reform might be leveraged to improve public procurement more broadly.

Public procurement has been critical in delivering vital frontline public services both in the health sector and elsewhere, with procurement of ventilators, protective equipment and new hospitals all hitting the headlines. At the same time, procurers have faced the challenge of adjusting existing contracts to a new reality where, for example, some contracted services can no longer operate. Further, efficient and effective procurement will be an essential, and not a luxury, in the economic recovery.

With case studies on Italy, the UK, the USA, India, Singapore, Africa, Latin America and China, the book brings together the world’s leading academics and practitioners from across Europe, the Americas, Asia and Africa to examine these issues, providing an essential resource for policy makers, legislators, international organisations and academics.

Several APLU researchers contributed to the work, including chapters focusing on the experience in Italy by APLU Fellow, Annamaria La Chimia and in Africa by APLU directors and fellow, Geo Quinot, Sope Williams-Elegbe and Kingsley Udeh.

The book can be ordered from the publisher’s website at this link.

Procuring of cloud computing in the public sector

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.

Public Procurement Regulation in Africa: Development in Uncertain Times

edited by Geo Quinot & Sope Williams-Elegbe

9780639010601_1 Public Procurement Regulation 2020Public procurement law is one of the fastest growing areas of law globally. In recent years, the role of public procurement in supporting development has been highlighted, becoming a major theme of research, and included in the United Nations Sustainable Development Goals.

Yet, despite it being estimated that on average about 15% of the GDP of Sub-Saharan African countries is expended on public procurement, there is limited research on public procurement and the role of law in Africa.  APLU’s 2020 publication released by LexisNexis, Public Procurement Regulation in Africa: Development in Uncertain Times aims to address this gap in the literature.

Transcending academic legalese and philosophical discourse, the title puts forward ideas on arresting procurement maladies and will also be useful for administrative, law enforcement functionaries, consultants, academics, and students interested in expanding their procurement knowledge while contributing meaningfully to African procurement reform.

In her foreword, Professor Thuli Madonsela, former Public Protector of South Africa, says, “Procurement has become the Achilles’ heel of state affairs in South Africa and other parts of the African continent. Yet properly handled, procurement can contribute meaningfully towards good governance and state delivery on sustainable development goals and the advancement of social justice and related human rights.”

Editors Geo Quinot and Sope William-Elegbe, both professors of law at Stellenbosch University and co-directors of the African Procurement Law Unit, bring together a number of essays from academics and professionals working in public procurement law, focusing on public procurement regulation in Africa aimed at development in uncertain times.

Working on a social compact for economic recovery, growth and transformation needs to be the focus for both the private and public sector, with compliant procurement playing a pivotal role in this process. Understanding and identifying the many fault lines that exist to allow for procurement irregularities, will serve to red flag fraud and corruption and increase efficiencies and compliance with the law. As the COVID-19 pandemic has clearly shown, there has never been a more urgent time to engage with these issues.

ToC

To order the book, click on this link.

Prof La Chimia appointed Director of the Nottingham Public Procurement Research Group

APLU is proud that Professor Annamaria la Chimia, professor in law and development at the School of Law at the University of Nottingham and a research fellow of APLU has been appointed as the new director of the Public Procurement Research Group (PPRG) at the University of Nottingham from 1 August 2020.

La Chimia visa photoProf La Chimia succeeds Prof Sue Arrowsmith QC (Hon), who established the PPRG more than 20 years ago in Nottingham. The PPRG is a global leader in research and teaching on public procurement regulation and APLU has enjoyed a close working relationship with the PPRG since its inception in 2012. This relationship was further formalised when Prof La Chimia was appointed as a research fellow with APLU under the auspices of the Department of Mercantile Law at Stellenbosch University in 2019.

Prof La Chimia read Law at the University of Rome La Sapienza, completed an LLM in International Economic Law (2002) and a PhD (2006) at the School of Law at University of Nottingham. She joined the School of Law at the University of Nottingham as a lecturer in 2006, was promoted to Associate Professor in 2014 and to Professor in 2019. She heads the Humanitarian and Development Procurement Unit and is co-leader of the Procurement and Human Rights Unit of the PPRG. She is a founding member of the European Association on Public Private Partnership (EAPPP), a member of the Transatlantic Food Assistance Dialogue (TAFAD) and until 2018 was member of the steering Committee of the Learning Lab on Procurement and Human Rights. Prof La Chimia is currently Co-Investigator for the Rising from the Depths project, a two-million pound project funded by the UK Global Challenges Research Fund (GCRF) through the Arts and Humanities Research Council Network Plus scheme, which focuses on utilising marine cultural heritage in East Africa to help develop sustainable social, economic and cultural benefits.

 

Updated global bibliography on public procurement law research published

An updated version of the Bibliography on Public Procurement Law and Regulation has been published by the Public Procurement Research Group (PPRG) at the University of Nottingham under the supervision of Prof Sue Arrowsmith QC (Hon). The update covers materials up to the end of 2018.

APLU has been a collaborator on the development and maintenance of the bibliography from its outset in 2011 and again worked closely with the PPRG to update the African section of the 2019 bibliography.

The bibliography aims to list in a comprehensive manner reading in the English language on public procurement law and regulation. As such, it provides an invaluable tool for the study of public procurement law and provides an excellent starting point for any research project in this field of law. The bibliography is freely available at the link above.

Williams-Elegbe serves as Vice-Chair (Africa) of IBA subcommittee

Sope at Blockchain Africa 2020 2APLU’s Sope Williams-Elegbe is the Vice-Chair (Africa) of the Debarment and Exclusions Subcommittee (the Subcommittee) of the International Bar Association’s Anti- Corruption Committee.

In cooperation with the World Bank, the Inter-American Development Bank Group, and Le Bureau de l’inspecteur general de la Ville de Montréal, the Subcommittee is conducting research into national suspension & debarment systems. To launch the survey, the Subcommittee on 18 March 2020 presented a webinar titled “The Global Exclusion Survey: A Look at Suspension and Debarment Systems from around the World.” Sope was one of the panellists on the webinar, a recording of which can be found here.

The survey can be accessed here.