TRANSFER OF FUNDS AND IMPLEMENTING AGENTS UNDER THE NEW DRAFT PUBLIC PROCUREMENT BILL

Helen Venter

Abstract


 

Section 14 of the draft Public Procurement Bill, 2020 provides that public corporations and private enterprises who receive transfer payments to implement projects on behalf of government should be bound by the procurement regime of the Bill. This paper measures the provision against the test for legality, if it should be passed, as-is, into law.  The conclusion reached is that the section poses more questions than providing legal certainty, which was one of the objectives of the Bill.

Should it be the intention of the drafters of the Bill that public corporations and private enterprises who receive unrequited transfer payments from government should be bound by the procurement regime of those government institutions, it should properly indicate to:

  • whom the provision applies;what the management, contracting and reporting requirements are, aligned to the current provisions in the PFMA and MFMA; and
  • what arrangements apply to these organisations in terms of the procurement regime, bid committee systems, thresholds, dispute management, review mechanisms and enforcement.

Keywords


public procurement; public procurement bill; transfer payments

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References


Legislation

Competition Act 89 of 1998

Constitution of the Republic of South Africa, 1996

Local Government: Municipal Finance Management Act 56 of 2003

Public Finance Management Act 1 of 1999

Government publications

National Treasury 2009. Reference Guide on Economic Reporting.

National Treasury 2018. Classification circular – Classification of transfers and subsidies versus goods and services or capital assets, National Treasury. 28/05/2018.

Case law

MEC for Economic Opportunities, Western Cape v AGSA (19259/2018) [2020] ZAWCHC 50 (8 June 2020)




DOI: https://doi.org/10.14803/7-1-32

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