Civil society have raised serious concerns around the “rush” to pass the Public Procurement Bill, which will govern South Africa’s trillion rands of annual procurement expenditure - a fifth of gross domestic product GDP).
The Procurement Reform Working Group (PRWG), which includes the Ahmed Kathrada Foundation, Corruption Watch, Equal Education and the Public Affairs Research Institute (PARI) among others, have labelled the Bill “deficient and dangerous”.
It said that despite legislative drafting proceeding since 2014, in recent months the country had borne witness to a rush to get the Bill through Parliament before the 2024 elections.
This rush, the group says, has been attended by “unclear, unstudied, and un-consulted eleventh-hour changes”, which through their ramifications for state functions and the economy, will have profound implications for the basic rights of all South Africans.
“The Bill is deficient. To address systemic issues in public procurement, to avoid actually amplifying existing legal, operational, and economic chaos, there are serious corrections to be made to the Bill before it advances further,” the PRWG said.
It found the parliamentary participation process problematic, in that despite the short notice given for public participation, the 112 submissions were made.
However, the PRWG state that two months later, when the Treasury responded to these submissions, it appeared from records to have given cursory attention to only 36% of them, while 64% had not been processed at all.
This treatment of submissions mocked the efforts of participating stakeholders, the group said.
It further found that in the parliamentary process, a number of stakeholders advocated for a clearer, guiding statutory framework that restricted procurement practices within the balance of fairness, equitability, transparency, competitiveness, and cost-effectiveness. Treasury returned with a more comprehensive preferential procurement chapter - a potentially positive development - but the PRWG said this chapter had been hastily assembled.
“Its language and mechanics are often vague, even impenetrable. The chapter comes with new terms, such as ‘complementary goals,’ which remain undefined and unknown in legal precedent and professional practice. The new chapter’s expansive and loose provisions for ‘prequalification’ and ‘set-asides’ ... for certain categories of business may open up a rapid, unmanaged reallocation of state resources throughout the economy.
“This threatens the chapter’s concurrent concern with preserving and promoting industrial capacity, economic development, and job creation,” it said.
In addition, the PRWG said it was worrying to see the National Assembly “ignore or defer the Zondo Commission recommendations, disregard sensible stakeholder suggestions, and erode the Bill’s integrity provisions”.
It referred to the Zondo Commission’s argument for the creation of a robust and independent public procurement regulatory authority.
“But the Head of the Public Procurement Office will still be appointed through the existing, politicised process. The Zondo Commission came out in favour of the incentivisation of whistle-blowing in procurement, but this decision will now be deferred to promised amendments to the Protected Disclosures Act,” it said.
“This Bill will govern annual expenditure of a trillion rands. It is, as it stands, deficient and, if passed by both houses of Parliament, is potentially disastrous for our country,” the PRWG said.
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