Parliament has published the Public Procurement Bill — a law that will shape our tender processes for a generation. With comments due on 11 September, Parliament is rushing through a fundamentally flawed bill that could set the scene for State Capture 2.0.
There were many moments from the State Capture era that stood out; moments that — in a sea of shocking events — were so outrageous that they have entered the lexicon and common memory of all South Africans.The appointment of Des van Rooyen as a “weekend special” finance minister arriving at the National Treasury with his dubious advisers is another.
Van Rooyen’s short stint as minister demonstrated the vulnerability of a captured executive, especially where it has relatively unchecked discretion — which is precisely the problem with this bill.The objective of the bill is to create a single framework to regulate public procurement. The bill confers power on the minister to determine procurement methods and the procedures for bid specification, invitation, submission, opening, evaluation, adjudication and awarding of bids. Emergency procurement procedures are also left to regulation. The minister is given the discretion to regulate negotiations with bidders before the award of tenders, the need for lifestyle audits of persons automatically excluded from tender participation, and how procurement data should be retained.
In this bill, the regulations and instructions will reflect policy decisions based on the prevailing political winds. The Zondo Commission sat for four years, hearing evidence detailing how the procurement system was used for wealth accumulation, and then published voluminous reports with recommendations on how to create a stronger system.
This, they argue, is because the Treasury opted NOT to exercise the policy-making power of the state to adopt, promulgate, and enforce a comprehensive public procurement statute: “The … Bill should itself contain clear and accessible substantive policy choices in this area and not delegate and allow for such decisions to be taken in the sub-units of National Treasury.”The biggest beneficiaries of an ineffective system are those who seek to abuse and manipulate it.
Where it should create certainty, standardisation, uniformity across like-for-like situations, and a transparent and clearly defined basis for defining, justifying, limiting and monitoring all deviations, including preferential procurement, the bill instead expands the opportunities for the rent-seeking frameworks and factions that have bedevilled the procurement system up to now.
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