Limitations & ambiguities in Public Procurement Bill submission

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Paul Vos | General Manager | Southern Africa | Chartered Institute for Procurement & Supply (CIPS) | mail me |


Procurement and supply body adds voice to discourse over legislation and calls for more radical reforms to root out corruption.

We have submitted a series of detailed recommendations for South Africa’s Public Procurement Bill with the intention of advancing the principles of ethical procurement practices within the Southern Africa region.

About the bill

The bill ([B18B-2023]), tabled on 30 June last year, seeks to create a single regulatory framework for public procurement and eliminate fragmentation in laws governing procurement in the public sector.

We believe our expertise is crucial to discourse on the legislation. The suggestions, submitted on 22 February 2024 to the Gauteng Provincial Legislature’s Finance Portfolio Committee, include detailed incorporation of environmental and sustainability (ES) considerations, advocate for explicit provisions on capacity building, call for improvements in dispute resolution mechanisms, moot clear guidelines, contingency planning and checks on emergency procurement, and stress the need for stricter penalties for corruption and fraud.

Other notable recommendations include whistle-blower protection measures to foster an accountable procurement environment, a flexible approach, periodic reviews, and alignment with emerging technological trends. The bill needs to be reviewed in its current form to address ES issues, which raises doubts about its comprehensiveness in covering these crucial considerations.

Expanding the bill’s attention to ES aspects is essential for fostering a procurement framework that aligns with contemporary global standards, ensures the responsible use of resources, and contributes to broader societal and environmental goals.

Criteria for evaluating the performance

The legislation should articulate criteria for evaluating the ES performance of each purchase and should be weighted as part of the overall decision-making process. It should also introduce mandatory reporting requirements for transparency and ensure that ES considerations form a percentage of the purchasing decision.

Another concern for us is the need for explicit capacity-building and training provisions for public sector procurement professionals. By not mandating comprehensive training programmes, the bill fails to recognise the dynamic nature of procurement practices and the evolving demands placed on public sector professionals.

There is also an historic an ongoing deficiency in the public sector’s procurement workforce, which the bill fails to address adequately. In this regard, we propose explicit clauses mandating capacity-building and training programmes for public sector procurement professionals. We believe that by incorporating mandatory training, the bill will recognise the importance of continuous professional development and establish a framework for maintaining high standards of expertise.

It is our view that the dispute resolution section of the bill also requires further scrutiny, as the ambiguity in the resolution process may create challenges for procurement professionals and suppliers in navigating disputes efficiently. We fear that process stoppages may be highly detrimental to end users and procurement timelines. This section also needs to pay more attention to emergency procurement, raising concerns about potential misuse without adequate checks and balances.

Accordingly, we propose implementing more precise guidelines for end-user expectations during the dispute resolution process. It also advocates for improved planning and scheduling mechanisms within the bill to address concerns over process stoppages. It is also recommended that additional checks and balances be incorporated to prevent abuse and corruption in cases of emergency procurement. Independent oversight bodies, audits, and reporting requirements that act as preventive measures should be included.

The importance of addressing malpractice

We note that while the bill acknowledges the importance of addressing malpractice, a more comprehensive critique is necessary to identify gaps in the punitive measures. On this point, the organisation says the perceived imbalance between penalties for suppliers (disbarment) and officials (HR due process) engaged in corruption or fraud requires closer attention.

The current approach favours a more lenient process for officials, relying on human resources procedures rather than establishing explicit and stringent penalties. A fair and equitable system demands that penalties for both suppliers and officials be clearly defined and consistently enforced.

We recommend that South African legislators look to Botswana, where stringent checks and balances, transparent reporting mechanisms, and proactive prevention measures can enhance the bill’s efficacy.

We largely agree with the bill’s provisions relating to technology integration within the procurement landscape. We endorse the legislation’s commitment to embracing digital advancements for increased efficiency, transparency, and responsiveness and suggests incorporating periodic reviews and updates.

In conclusion

We urge thoughtful consideration of these recommendations as some of the changes in the bill are incremental and present a missed opportunity for more radical reform. This is an opportunity to set a standard for public spending to promote innovation, stimulate economic growth and employment, and promote ethical and efficient public procurement in South Africa.


 



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