A CONSTITUTIONAL REVIEW OF THE PRE-QUALIFICATION PROVISIONS UNDER THE PUBLIC PROCUREMENT BILL

Abstract

This article undertakes a critical analysis of mandatory prequalification as a mechanism for preferential procurement, focusing on the concept itself and its expression in section 18 of the Public Procurement Bill [B18-2023], the clause on prequalification for preferential procurement. The aim is to measure mandatory prequalification itself, and its articulation in section 18 of the Bill, against section 217(1) of the Constitution to determine if both pass constitutional muster. Viewed in the context of the meaning of prequalification, other equity mechanisms and concerns raised in respect to equity and preference mechanisms, this article finds that introducing a compulsory element to prequalification may perpetuate the issues faced by the public procurement system by creating more opportunities for “double-dipping” and fronting. Having discussed mandatory prequalification as a principle, its articulation in section 18 of the Bill, and the impact of both on the five principles enunciated in section 217 of the Constitution, this article submits that, while discretionary prequalification on its own serves as a useful equity mechanism to promote equity, mandatory prequalification harms the balance between fairness, equity, transparency, cost-effectiveness, and competitiveness (the five principles). This is because procuring institutions are obliged to apply prequalification criteria even if the situation faced by the relevant procuring institution does not require the promotion of equity. Section 18 of the Bill is therefore potentially inconsistent with the Constitution, and invalid, to the extent that it requires procuring institutions to apply prequalification criteria in circumstances where it is not necessary to meet the aims of the Constitution. This article, therefore, proposes that Parliament review the wording of section 18 to ensure that it does not result in outcomes that violate section 217 of the Constitution.