detail - Foundation Office South Africa
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In continuation of the training programme for the Office of the Public Protector (PP), this was the seventh training of this series, which was co-organized by the Head Office of the Public Protector in Pretoria and the Konrad Adenauer Foundation. 11 Investigators from the Eastern Cape Branch of the Public Protector attended the 5-day training in East London. The Deputy Public Protector Adv. Kevin Malunga was also present at the training. The content and schedule of the training were developed by Prof. Quinot and Prof. Williams-Elegbe from the African Procurement Law Unit (University of Stellenbosch), who also implemented the workshop.
The training especially focused on the following main areas:
- Introduction to public procurement law and overview of the state of the law in South Africa
- Procurement methods
- Adjudication of public tenders
- Grievances and disputes in public procurement law
- Corruption in public procurement
On Day 1 participants were introduced to public procurement law. The notion of this field of law was discussed and distinguished from other related fields, such as supply chain management. The basic legal framework in terms of which public procurement occurs in South Africa was set out. This involved general constitutional and administrative law at the highest level as well as the largely statutory framework that governs public procurement in particular.
The outcome of this unit 1 was to develop an appreciation for:
- The notion of public procurement law;
- The distinction between public procurement law and other fields impacting on public procurement;
- The regulation of public procurement in global perspective;
- The general legal framework in South Africa in terms of which public procurement law exists;
Above that, participants should also gain an understanding of the main statutory instruments governing public procurement in South Africa:
- Public Finance Management Act 1 of 1999 & regulations o Local Government: Municipal Finance Management Act 56 of 2003 & regulations of Preferential Procurement Policy Framework Act 5 of 2000 & regulations
- Construction Industry Development Board Act 38 of 2000 & regulations
- National Land Transport Act 5 of 2009 & regulations
- State Information Technology Agency Act 88 of 1998 & regulations
Moreover, the training transmitted an overview of the scope of public procurement law in South Africa:
- What type of transactions are covered
- Which institutions are covered
- What stages of procurement are covered
- The main legal requirements for a valid public procurement.
Day 2 focused on particular procurement methods. In South African law there are essentially three basic procurement methods or procedures, namely petty cash purchases, quotations and competitive bidding. These are also at times used in combination in multi-stage procedures. The law focuses primarily on the third of these procedures, competitive or open bidding. This is where bidders are invited to submit tenders that are formally adjudicated within the procurement law regime. In addition to the basic procurement methods set out above, the law also provides for a number of "special" procurement arrangements, namely unsolicited bids, transversal contracts and participating in contracts arranged by another organ of state.
On day 3, the training focused on one particular method of procurement, namely competitive bidding. This is the prescribed procedure for the most important and high value transactions. The law prescribes detailed rules for how this procedure must be implementing leading to the decision to award a tender to a bidder.
Day 4 focused on grievances and disputes in public procurement. In this unit, participants where trained on what can broadly be called the procurement remedies regime. This includes the various mechanisms that are available to enforce the rules of public procurement.
The final day focused specifically on corruption in public procurement and the legal measures aimed at curbing corruption that forms part of public procurement law. Therefore, participants gained insight into the specific South African legal rules aimed at curbing corruption in public procurement and how the courts have interpreted those roles. The issue of corruption in public procurement was considered more broadly and it was discussed what the typical forms of corruption in procurement are and how to identify potentially corrupt activities in public procurement.