THE REFORM OF PUBLIC PROCUREMENT REMEDIES: A DOMESTIC AND COMPARATIVE ANALYSIS

Abstract

The current remedy regime of the public procurement system of South Africa has left much to be desired as compared to what the UNCITRAL Model Law on Public Procurement suggests as an international standard. With the world-wide COVID-19 pandemic shining a spotlight on government procurement systems and their failures, and extensive allegations of extreme malfeasance in public procurement of various emergency requirements in South Africa in response to the pandemic, an effective remedy regime has never been more important. This article explores some of the major failures of the current South African remedies regime against the backdrop of the UNCITRAL Model Law and the recently published draft Public Procurement Bill, 2020. It argues that although the draft Bill provides some solutions, there are several issues that must still be addressed before the draft Bill can be enacted. The draft Bill shows promise by attempting to clarify the hierarchy of remedies available internally and externally, by introducing the Public Procurement Tribunal and Regulator and creating new compensation claims available to bidders. However, the independence of these new institutions, the continued fragmentation of the available remedies, the lack of review or reconsideration procedures for local government, the problems faced by courts in choosing the appropriate remedy out of the numerous available to them, and more, remains to be addressed. It is argued that the Bill should be closer aligned to the Model Law, especially with regards to a stand-still period between contract award and conclusion.