PUBLIC PROCUREMENT BILL [B 18B-2023] PRESENTED BY:

Transcript:PUBLIC PROCUREMENT BILL [B 18B-2023] PRESENTED BY::
PUBLIC PROCUREMENT BILL [B 18B-2023] PRESENTED BY: Mr Willie Mathebula, Chief Director: SCM Policy & Legal, Office of the Chief Procurement Office Adv Empie van Schoor, Chief Director: Legislation, Office of the Director-General 19 March 2024 Responses by National Treasury to submissions received during public hearings INTRODUCTION A comment matrix containing submissions with responses submitted to SeCOF on 14 March 2024 Two submissions with responses added to the comment matrix (Corruption Watch & Busa) and submitted to SeCOF on 18 March 2024 KEY ISSUES IN SUBMISSIONS – 1. CONSTITUTIONAL CONCERNS Preferential procurement (Ch 4 of Bill) Concerns raised about alignment of Ch 4 with rest of Bill whether Ch 4 is a framework envisaged in s217(3) of Constitution and clarity on set-asides, pre-qualification, sub-contracting and local production & content KEY ISSUES IN SUBMISSIONS – 1. CONSTITUTIONAL CONCERNS Preferential procurement (Ch 4 of Bill) Alignment comments: Ch 4 to be understood in context of procurement system envisaged in s217(1) of Constitution, and is also linked to Ch 5 which provides for framework for this system to be prescribed by regulations Procuring institutions must implement their procurement systems and policies taking into account nuances of their sector and industries Constitutional Court judgement of Afribusiness v the Minister of Finance, Justice Mhlantla stated that: “The stand-alone reading of section 217(1), which ignores section 217(2), is not only a disservice to statutory interpretation, but also ignores the founding values of the Constitution.” This confirms that national legislation providing a framework to give effect to s217(2) of the Constitution must take into account the founding values of the Constitution and the need to deliberately redress past discriminatory practices & provide for measures to make a meaningful difference to the lives of South Africans who suffered under pre-April 1994 dispensation Refer also to par 60 of the judgment KEY ISSUES IN SUBMISSIONS – 1. CONSTITUTIONAL CONCERNS Preferential procurement (Ch 4 of Bill) – cont Framework comments: Section 217(2) & (3) of the Constitution means that Parliament is entitled & required to enact legislation laying down a “framework” for the implementation of preferential procurement policy envisaged in section 217(2) The question of how tight or loose that framework is – that is, how much discretion it affords to organs of state to develop their own policies or depart from the national policy – is for Parliament to determine (par 18.5 of Adv S Budlender SC’s opinion) s217(2)