Ultimate Guide To The Public Procurement Bill: Essential FAQs

Chapter 1: DEFINITIONS, OBJECTS, APPLICATION AND ADMINISTRATION OF ACT

Q: What are some of the key definitions established in this chapter?

The chapter defines a range of crucial terms, including "accounting authority," which refers to the entity responsible for managing an institution's finances as defined by the Public Finance Management Act. It also defines terms like "bid," "bid committee," "black people," and many others, ensuring everyone understands exactly what these terms mean within the context of the Act.

Q: What is the core objective of this Act?

The Act aims to establish a public procurement system guided by fairness, equity, transparency, competitiveness, and cost-effectivenes principless. It introduces standardized treasury norms and a preferential procurement framework to address historical inequalities.

Q: To whom does this Act apply?

The Act applies to all government departments, constitutional institutions, municipalities, and public entities listed in the Public Finance Management Act. Its provisions take precedence over any conflicting legislation.

Q: Who is responsible for this Act's administration?

The Minister, the Cabinet member responsible for financial matters, is responsible for administrating this Act.

Chapter 2: PUBLIC PROCUREMENT OFFICE, PROVINCIAL TREASURIES AND PROCURING INSTITUTIONS

Q: What body does this Act establish?

This Act establishes a Public Procurement Office within the National Treasury. The Head of this office manages the office and is expected to carry out their duties impartially.

Q: What are the functions of the Public Procurement Office?

The Public Procurement Office is tasked with promoting compliance with the Act by procuring institutions, offering advice and assistance, ensuring procurement transparency, and creating and managing procurement-related databases.

Q: What role do provincial treasuries play in the context of this Act?

Provincial treasuries monitor the implementation of the Act within their provinces, promote transparency in procurement, intervene in cases of material breaches, and provide information to the Public Procurement Office as required.

Chapter 3: PROCUREMENT INTEGRITY AND DEBARMENT

Q: What standards of conduct are expected of individuals involved in procurement?

The Act emphasizes ethical conduct and outlines a code of conduct applicable to all individuals involved in procurement processes. This includes accounting officers, bid committee members, and bidders, who are prohibited from using their positions for personal gain or interfering with the procurement process.

Q: What is "automatic exclusion" from submitting a bid, and who is subject to it?

To prevent conflicts of interest, the Act introduces the "automatic exclusion" concept, which prohibits certain individuals from submitting bids. This includes public office bearers, officials of Parliament and provincial legislatures, employees of constitutional institutions and public entities, and individuals with close relationships to those automatically excluded [13].

Q: What is the process for the debarment of bidders or suppliers?

The Act outlines a clear process for debarring bidders or suppliers who engage in unethical or unlawful conduct. This process includes providing notice, allowing for a response, issuing a debarment order, and maintaining a publicly available debarment register.

Chapter 4: PREFERENTIAL PROCUREMENT

Q: What is the Act's approach to preferential procurement?

The Act mandates a preferential procurement framework that aims to uplift historically disadvantaged groups. It promotes the allocation of contracts to designated groups, particularly black-owned enterprises, and includes provisions for "set-asides" and "pre-qualification criteria" to level the playing field.

Q: What are set-asides in the context of preferential procurement, and what categories of persons do they target?

Set-asides involve reserving bids for specific categories of individuals or entities, particularly those historically disadvantaged. They target:

• black people

• black women

• women

• people with disabilities

• military veterans

• and small enterprises, among others

Q: Can bids subject to preferential procurement still be assessed based on traditional criteria?

While preferential treatment is applied, all bids are also evaluated based on criteria outlined in Section 24(1)(d), including cost-effectiveness, capability, functionality, and technical requirements. This ensures that all awards are made fairly and transparently.

Chapter 5: GENERAL PROCUREMENT REQUIREMENTS

Q: Who sets the standards for procurement systems used by institutions?

The Minister prescribes a framework that guides procuring institutions in developing and implementing their procurement systems. This framework encompasses strategic procurement, procurement methods, procedures, and evaluation criteria.

Q: Are there limitations to the use of other organs of state for procurement?

The Act allows procuring institutions to acquire goods and services from other state organs, but this must be done according to prescribed regulations.

Q: What measures are in place to ensure that procurement processes are fair and ethical?

The Act requires steps to prevent the abuse of procurement systems. This includes investigating allegations of corruption or improper conduct, verifying bidder credentials, and disqualifying bidders with a history of misrepresentation.

Chapter 6: DISPUTE RESOLUTION

Q: What can a bidder do if they're unhappy with a decision made about a bid?

Bidders dissatisfied with bid award decisions have the right to apply for reconsideration by the procuring institution. This provides an internal mechanism for resolving disputes before proceeding to the Tribunal or court.

Q: What is the function of the Public Procurement Tribunal?

The Act establishes a Public Procurement Tribunal to provide an independent review of decisions made by procuring institutions. The Tribunal is tasked with resolving disputes related to the awarding of bids and the debarment of bidders.

Q: What options does the Tribunal have when reviewing a procuring institution's decision?

The Tribunal holds the authority to confirm, set aside, or substitute decisions made by procuring institutions. It can direct institutions to take specific actions, such as canceling an award or terminating procurement proceedings.

Chapter 7: GENERAL PROVISIONS

Q: Under what circumstances can the Public Procurement Office launch an investigation?

The Act grants the Public Procurement Office the authority to investigate alleged non-compliance, even if an offense hasn't been committed. The Office can initiate investigations independently or at the request of a treasury, procuring institution, or member of the public.

Q: Can the Public Procurement Office access and search premises without prior notice?

The Public Procurement Office has the power to authorize individuals to access and search premises, including those of procuring institutions, officials, bidders, and suppliers. However, accessing an official or private residence requires consent or a warrant.

Q: Is the Minister required to review the Act after its implementation?

To ensure its effectiveness, the Act mandates a review by the Minister within 24 months of its implementation. This review will assess the Act's impact and identify any necessary amendments.