TRANSFER OF FUNDS AND IMPLEMENTING AGENTS UNDER THE NEW DRAFT PUBLIC PROCUREMENT BILL
Keywords:
public procurement, public procurement bill, transfer payments
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.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)
Published
2020-06-30
Issue
Section
Articles & notes
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