African Public Procurement Law Journal

REVISITING THE JURISPRUDENCE ON BID VALIDITY EXTENSIONS

Tshiamo Sedumedi — Tue, 25 Nov 2025 06:02:48 +0000

Is it obligatory for South African organs of state to request the extension of a bid validity period to all bidders that have responded to a bid? Or can an organ of state exclude from this request, bidders who have already been disqualified during the preliminary stages of the bid evaluation and adjudication process? This article critically analyses the recent judgements in South Africa on the matter and argues that it is both practically and legally inappropriate to exclude bidders who have been disqualified but are yet to be officially informed. To do so, would have the unintended consequences of compromising the fairness and cost-effectiveness of the tender process. The fact that the disqualification has not been approved by the appropriate delegated authority and communicated to the bidder(s) begs the question whether in such circumstances, the disqualification constitutes a “decision” and is thus an administrative action as contemplated in the Promotion of Administrative Justice Act 3 of 2000. The article further questions whether is it mandatory for all the bidders to consent to the extension of the bid validity period? Or does it suffice if some of the bidders consent whilst others do not? It is argued that requiring all bidders to consent so as to keep the bid validity alive, unreasonably presupposes that participants in a tender process are “joint bidders” whose individual offers must lapse if one of the “joint bidders” does not consent to the bid validity extension.

BALANCING INNOVATION AND REGULATION: A LOOK AT UNSOLICITED BIDS AND PROPOSALS’ POTENTIAL TO UNLOCK INNOVATION IN PUBLIC PROCUREMENT IN SOUTH AFRICA

Imraan Abdullah, Charles Green — Wed, 31 Dec 2025 00:00:00 +0000

Public procurement generally entails that the state approach the private sector for goods and services it requires. However, in the South African context, it is recognised that the private sector can approach the public sector with unsolicited bids or proposals to address challenges that the public sector faces, such as aging infrastructure and poor service delivery. Thus, allowing the private sector to take the initiative to collaborate with the public sector, as opposed to responding to requests for proposals from the public sector, can be viewed as a reactive and restrictive approach to addressing the unique challenges that the public sector faces. This article argues that unsolicited proposals should be encouraged, provided they are regulated and there are clear guidelines to ensure compliance with the Constitution and established public procurement norms and principles. Unfortunately, the regulation of unsolicited proposals differs when it comes to ordinary procurement by the state as opposed to unsolicited offers in public-private partnerships (“PPPs”). As such, this article explores the differential treatment by National Treasury and our courts with respect to unsolicited bids in the context of ordinary procurement versus the treatment of unsolicited proposals in PPPs. It is argued that National Treasury takes a light approach to regulating the process when unsolicited bids are received, evaluated and awarded by the public sector in cases of ordinary procurement but a heavy approach for unsolicited proposals received by organs of state where municipalities and PPPs are concerned. By referring to judgments on the subject-matter, this article considers the danger that the light approach can and has had, and ultimately argues that, going forward, National Treasury must also apply the heavier approach utilized for PPPs in the context of ordinary procurement.

A STRATEGIC PUBLIC PROCUREMENT PARADIGM FOR SOUTH AFRICA: REFLECTIONS OF THE JOINT STRATEGIC RESOURCE (“JSR”) ON THE DEVELOPMENT OF THE SOUTH AFRICAN PUBLIC PROCUREMENT BILL, 2023

Jonathan Klaaren, Ryan Brunette; Geo Quinot; Ron Watermeyer — Wed, 31 Dec 2025 00:00:00 +0000

South Africa’s public procurement regime, established in the context of public sector reform initiatives of the late 1990s and early 2000s, requires reform. The drafting process for new public procurement legislation has been a long and winding one, and much of it has taken place beyond public scrutiny. In 2022, a revised version of the 2020 Public Procurement Bill was introduced into the National Economic Development and Labour Council (“Nedlac”).The early deliberations in Nedlac were attended, at the request of business and labour, by a small number of outside individuals and organisations with expertise in public procurement. The Task Team soon formalised this function with those individuals and organisations, styled as a Joint Strategic Resource (“JSR”), coordinated by the Public Affairs Research Institute (“PARI”), and including the African Procurement Law Unit (APLU), the Wits School of Construction Economics and Management, and Corruption Watch. A crucial aspect of JSR’s work, agreed to in principle between all the social partners, was to provide the legal basis for moving public procurement in South Africa toward a new strategic procurement paradigm. The JSR was asked to support the Task Team by theorising this concept and suggesting how it could be embedded in the Bill. The JSR prepared a proposed draft of the Public Procurement Bill, which is available as Annexure C of the Final NEDLAC Report on the Bill (“the JSR Draft”). The present contribution explains the strategic procurement paradigm that underpins the JSR Draft of the Bill. We argue that the JSR Draft demonstrates that strategic procurement is appropriate to the South African context for adoption and implementation as the key concept in a comprehensive public procurement statute.