The Public Procurement Bill, do we need it?

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File picture: Denis Farrell

National Treasury published the Public Procurement Bill earlier this year for comments from the public. The primary aim of the bill is to regulate public procurement and to prescribe the framework for the procurement policy as envisaged in section 217 of the constitution. The bill aims to use the procurement system to advance economic opportunities for previously disadvantaged people and women, the youth and people with disabilities small businesses; and promote local production.
 
The bill is significant in that amongst others, it creates a single regulatory framework for public procurement, that will be controlled centrally by National Treasury, through the Public Procurement Regulator. There will no longer be various fragmented tender processes which create uncertainty and confusion. Chapter 5 of the Bill sets out the bidding process. Notably, clause 37 (6) prescribes that every bid will be evaluated according to set criteria and methodology and the evaluated cost of each bid must be compared with the evaluated cost of other bids to determine the most economically advantageous bid.  
 
Clause 13, places an obligation on an official to not comply with instructions inconsistent with the bill. The official must inform the minister in writing of what is taking place. The official raising the alarm must not be subjected to any disciplinary measures due to the non-compliance or failure to comply with the instruction of his or her senior. To give the official more protection, a clause can be included to make reference to the Protected Disclosure Act of 2000. In that way, the official will be protected from intimidation and may even request a transfer. 
 
Part five of the bill establishes the Public Procurement Tribunal to review decisions made by a provincial treasury or the Regulator. Bidders unhappy with the outcome of a bid by a provincial treasury can have such decisions reviewed by the Public Procurement Tribunal. The tribunal will comprise of two retired judges and two experts in the field of procurement. If the bidder is still unhappy with the outcome of the tribunal, the bidder may institute court proceedings by taking the tribunals decision on review. The review proceedings will also be public.
 
The establishment of the Procurement Regulator will require an enormous budget. One must ask whether such an institution is justified? Do we need another institution to assist the government to hold itself accountable? Particularly, in a time where finances are low, communities are violently protesting and crying out to govt that lockdown measures are leading them to starvation.  
 
Amongst others, we already have the Auditor-General of South Africa (AGSA) which must audit and report on the accounts, financial statements and financial management of all three spheres of government and its entities. The Public Protector (PP) which has the power to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice.  
 
Also, the President on a recommendation of the PP’s 2016 report established a Judicial Commission of Inquiry to inquire into allegations of state capture, corruption and fraud into the public sector and organs of state. The hearings are ongoing. Last year, the Public Audit Act of 2019 was amended to give AGSA more power to act against officials and employees who waste taxpayers’ money and those who are aware that money is being siphoned however do not raise the alarm. Both are chapter 9 institutions, established the Constitution to be independent. The commissioners are appointed by and report to Parliament. Both AGSA and PP’s reports are also referred to Parliament.
 
All departments and its entities, are accountable and must report to Parliament and Provincial Legislatures as to how monies are spent.  In fact, the Parliament and Legislatures must approve budgets of departments and its entities. This oversight measure aims to ensure that monies allocated to departments and entities are used to the benefit of citizens. Parliament and the Provincial Legislatures also have the power to conduct hearings and summons persons required to give evidence to it. 

A report adopted by the National Assembly would carry a considerable amount of weight in holding the government accountable. However, it has been raised in various committee meetings that officials lie to Members of Parliament (MPs). One such committee meeting, Judge Nugent of the Nugent Commission of Inquiry into the Tax Administration and Governance by the South African Revenue Service, suggested that the best way to prevent Parliament from being misled or state capture or corruption is to appoint fit and proper persons with an unblemished record that is not linked to any constituency.  

To enhance holding government accountable, MPs have also suggested that the public provide it with credible evidence to hold officials and an executive accountable. This is a very good suggestion, however, in order for the suggestion to have meaning, Parliament, the Provincial Legislatures and Municipal Councils need to implement programmes aimed at educating the public how it functions and how the public can assist in holding representatives and officials accountable. 
These linkages must also be built and maintained.

Despite citizens wanting to be involved, meaningful citizen participation in governing processes is lacking. This is unfortunate as it will impact the credibility of the legislative branch to hold the executive branch accountable.  Given the findings of commissions and ongoing allegations, there is a desperate need for an institution that will ensure credibility in the governments’ procurement system. The public can comment on the bill until 30 May 2020 and Parliament will hold public hearings on the bill after lockdown ends.