NGO alarm at procurement bill

A group of NGOs has slammed the Public Procurement Bill recently adopted by the National Assembly, saying the lack of public participation in its drafting and late, sweeping changes are “deficient and dangerous”.

The criticisms come from the Procurement Reform Working Group, which includes the Ahmed Kathrada Foundation, Equal Education, the Public Affairs Research Institute, amaBhungane, the Equal Education Law Centre, Corruption Watch, the Public Service Accountability Monitor, the Legal Resources Centre and #Unite Behind.

The bill, which aims to create a consolidated legislative regime for procurement by organs of state amounting to almost R1-trillion a year, was drafted on the recommendations of the Zondo commission to prevent the widespread corruption of state institutions, which marred the administration of former president Jacob Zuma.

But the group highlighted deficiencies related to participatory procedure, integrity and transparency, and preferential procurement that if passed by the National Council of Provinces could be “potentially disastrous”. It is also scathing about the lack of proper public participation, which the Constitutional Court ruled is essential in the lawmaking process.

The NGOs say the bill is being rushed in the run-up to the 2024 elections and the result has been that “unclear, unstudied and unconsulted 11th-hour changes” have been introduced that have wide ramifications.

The group adds that the National Treasury responded to just 36% of the 112 public submissions on the bill.

“The Treasury’s subsequent recommendations — often with opaque origins outside of the participatory process itself — retained serious flaws in the bill, rolled back integrity provisions and included an entirely new preferential procurement chapter. This treatment of submissions mocks the efforts of participating stakeholders,” a statement from the group reads.

“The last-minute imposition of sweeping changes to the bill, where [the] impact on rights requires further consultations between social partners in Nedlac and with the public in parliament, contradicts the participatory spirit of the constitution, the Nedlac Act and broader law,” the statement adds.

The standing committee on finance’s engagement in participatory procedures and executive oversight was superficial, the group says.

“The Zondo commission argued for the creation of a robust and independent public procurement regulatory authority, but the head of the public procurement office will still be appointed through the existing, politicised process.

“The Zondo commission came out in favour of the incentivisation of whistle-blowing in procurement, but this decision will now be deferred to promised amendments to the Protected Disclosures Act. These

amendments will likely take years. The department of justice & constitutional development, responsible for formulating them, is already publicly dismissive of incentivisation.

“This does not augur well for anti-corruption efforts.”

The bill introduced to the National Assembly gave the proposed public procurement office and provincial treasuries the power to review the procurement policies of procuring institutions. But the version passed by the National Assembly removes those provisions, which the group views as essential for ensuring Treasury control and integrity across the system.

Another point of contention is the removal of a clause that automatically excludes leaders of political parties from participating in procurement as bidders and suppliers as well as persons related to officials employed by the procuring institutions.

The bill passed by the National Assembly proposes to regulate such potential conflicts through ordinary conflict of interest provisions.

The group says those provisions have been ineffective in the past, are too narrowly conceived to address complex conflicts of interest and do not incorporate stakeholder suggestions to the effect that state trading with automatically excluded persons or their relations should be proactively disclosed to the public.

The group is also critical of the bill’s provisions on preferential procurement, which it says were hastily assembled and often vague, and raise the prospect of operational chaos and costly, disruptive litigation.