TIME TO GO BACK TO FIRST PRINCIPLES: A CRITICAL ANALYSIS OF THE 2017 PROCUREMENT REGULATIONS REVEALS THEM TO BE SHORT OF THE LEGALITY-CUM-RATIONALITY MARK

Abstract

Tendering has become an increasingly messy, high-stakes business; a disconcerting fact given the essential role public procurement plays in ensuring the delivery of vital goods and services to the public (using public money). The new (2017) Procurement Regulations complicate matters through, in particular, their allowance of pre-qualification criteria based on preference. In this article, I analyse three key ways in which the new Regulations seek to go further in the name of empowerment at the expense of competitiveness and hence cost-effectiveness. I illustrate that while not all of these new tools fall short of the legal mark, the use of tender conditions based upon preference for the purposes of pre-qualification, is unlawful and irrational given the methodology under the empowering Procurement Act and the need to give effect to all the constitutional procurement principles in a balanced way. I consider the likely practical knock-on effects of this; namely a perverse increase in fronting practices and hence diminished substantive empowerment, and an increase in litigation for non-compliance with tender conditions. On the latter score, I provide a jurisprudential snapshot of our courts’ varying approaches to this assessment, culminating in an analysis of the AllPay test which I caution should be applied correctly and consistently to reduce the increasing lack of certainty in the procurement arena – recently aggravated by our highest court’s greenlight in Gijima for state self-review via the flexible principle of legality. I conclude by making some suggestions for reform that would be congruent with our blueprint constitutional ‘1st principles’ and perhaps alleviate some of the pressure on our resource-stretched courts.