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

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; andwhat arrangements apply to these organisations in terms of the procurement regime, bid committee systems, thresholds, dispute management, review mechanisms and enforcement.