New work provides easy access to government’s procurement policies
Owing to the fragmented regime governing public procurement in South Africa, it is exceedingly difficult to form a coherent view of the legal regime of government contracting. Professor Phoebe Bolton’s book, The Law of Government Procurement in South Africa, provides for the first time relatively easy access to this regime, which will undoubtedly be of significant assistance to anyone approaching this field of law, says Geo Quinot in the ‘Public Procurement Law Review’.
“Bolton, a lecturer from the University of the Western Cape, has penned this book to comprehensively deal with public procurement law in South Africa. As such it is a pioneering work that makes an important contribution towards focusing scholarly attention on this much neglected field of law in South Africa.”
The book’s primary focus is on section.217 of the Constitution of the Republic of South Africa, 1996 (the Constitution), which contains the framework principles for public procurement in South Africa. Bolton thoroughly analyses this important section of the Constitution and draws out the meanings and implications of the rather terse statement from the ‘Core Requirements of a Public Procurement System’, which should be "fair, equitable, transparent, competitive and cost-effective".
Apart from the constitutional analysis, the mainstay of the book is its detailed treatment of the various and fragmented statutory provisions that govern discrete aspects of public procurement in South African law. Bolton examines important enactments such as:
- Public Finance Management, Act 1 of 1999.
- Local Government: Municipal Systems, Act 32 of 2000.
- Municipal Finance Management, Act 56 of 2003.
- The Preferential Procurement Policy Framework, Act 5 of 2000.
- Broad-Based Black Economic Empowerment, Act 53 of 2003.
Of particular value is her comprehensive analysis of many regulations made under these, and other, statutes.
“The present legislative framework for Public Procurement was designed post 1994 and Bolton’s examination of the use of public procurement as a policy tool in South Africa will be of particular interest. One need only consider the massive effect of the Preferential Procurement Policy Framework Act (PPPFA) on Black Economic Empowerment (BEE) Supplier Development since its promulgation in 2000.
“The particular mandate in section.217 of the Constitution is to use public procurement to address the inequalities caused by the apartheid system and provide an important example of the potential role of government procurement in advancing public policy. Bolton provides a detailed analysis of how this mandate is translated into procurement practice in South Africa.
Also of special interest is the book’s discussion of the definitions of an ‘organ of state’, which not only includes departments of state, but also "any other functionary or institution… exercising a public power or performing a public function in terms of any legislation". Purely private bodies may thus qualify as organs of state when fulfilling public functions, such as running a prison or providing public transport services. The reviewer however cautions that an ‘organ of state’ should be read with the qualifying statement, “in the national, provincial or local sphere of government”.
The book is structured around a number of important themes in public procurement law:
- The law that applies to public procurement;
- The constitutional framework of government procurement;
- The scope of the government’s power to contract;
- The importance and attainment of value for money;
- The use of competition: award procedures;
- Fairness and transparency: PFMA, MFMA and Municipal Systems Act;
- Public law requirements of procedural fairness;
- The Right to Reasons and Access to Information;
- Public policy as a policy tool;
- Public law remedies;
- Private Law;
- Legislative remedies;
- Indexed tables of cases and legislation; and
- A detailed bibliography, which provides a valuable tool in gaining access to literature, both local and international, on procurement law.
Despite Quinot’s reservations "about some aspects of the book" from a Law Review point of view, the reviewer concludes that "it is a tremendous and valuable contribution to academic scholarship in South Africa and, certainly one for which Phoebe Bolton is to be commended”.
BOOK : The Law of Government Procurement in South Africa;
AUTHOR : Prof Phoebe Bolton, University of Western Cape;
PUBLISHER : LexisNexis South Africa;
REVIEWER : Geo Quinot, Senior Lecturer, University of Stellenbosch;
‘PublicProcurement Law Review’.
This abridged version of the review is published with the kind permission of LexisNexis South Africa.
SmartProcurement rating: a must read for anyone who is pursuing a career in the Procurement & Supply Management profession in South Africa. Each corporate and public library should have a copy for reference purposes.
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