Cape Town Mayor Geordin Hill-Lewis has asked President Cyril Ramaphosa not to gazette the new Public Procurement Bill into law as it could hamper service delivery, Cape {town} Etc reports.
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The Public Procurement Bill B18B-2023 aims to create a single framework to regulate public procurement by all state organs. ‘It provides, inter alia, for fair, equitable, transparent, competitive and cost-effective procurement by organs of state and institutions identified in national legislation,’ law firm Webber Wentzel notes.
However, as Webber Wentzel has pointed out, its current state still permits the creation of a procurement policy that offers preference categories for contract distribution and the protection or advancement of individuals or groups of individuals who have been harmed unfairly by discrimination.
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The City of Cape Town (CoCT), who already signed the Bill, argues that Ramaphosa may still refer it to the Constitutional Court for review before proclamation or send it back to parliament to make changes.
As reported by Engineering News, Hill-Lewis says the City will launch a constitutional challenge if the Bill is gazetted in its current form. He addressed the issue in a letter to Ramaphosa.
‘This Bill allows direct interference in municipal procurements by provincial treasuries and a new national Public Procurement Office (PPO), which will be empowered to dictate instructions to municipalities without proper cooperative governance arrangements or consultation.
‘This is unconstitutional, and undermines local government autonomy and direct accountability to serving residents,’ he added.
Some of CoCT’s concerns include but are not limited to:
- Municipalities will not be able to maintain their databases of accredited suppliers
- Payments to suppliers will be integrated into a national database
Furthermore, the Bill will nationalise national procurement via the Public Procurement Office (PPO). This could pose a problem if the central system goes offline, resulting in nationwide disruptions.
The PPO will also prevent municipalities from lawfully deviating from procurement regulations for urgent service delivery.
‘At a local level, we often have to procure fast to respond to urgent water, sanitation, electrical, waste and environmental issues,’ Hill-Lewis said.
‘But this Bill impedes the ability to respond swiftly to local needs by introducing more red tape to complicate procurements. This inefficiency will have a direct impact on service delivery to residents.’
According to CoCT, the Bill will also limit the ability to conclude contracts while tenders are reviewed, resulting in delayed tender appeals.
Hill-Lewis adds that the Bill could undermine infrastructure investment and the national government’s goal of cutting red tape across the board.
‘Infrastructure can often be delivered much faster via public-private partnerships, but the Bill mirrors existing municipal legislation, which makes PPPs too complex and time-consuming for municipalities to even attempt,’ he says.
‘The Bill further contains no provision for municipalities to leverage procurement for local socio-economic development, as required by Section 151 and 152 of the Constitution.’
The City highlighted 36 elements of the Bill which requires new regulations.
‘Introducing the national Finance Minister as a regulatory authority for local government is inconsistent with the Constitution, Municipal Systems Act and the Municipal Finance Management Act,’ Hill-Lewis says.
‘A PPO should be advisory at most. Oversight over public procurement is already carried out by the Auditor General and Public Protector.’
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Picture: Mayor Geordin Hill-Lewis / Facebook
