AfriBusiness says National Treasury seems determined to use preferential pre-qualification Act for government tenders. The lobby group says this is despite the Constitutional Court declaring Procurement Regulations of the Preferential Procurement Act of 2017.
In statement, Treasury says organs of state can apply for exemptions from certain provisions of the Preferential Procurement Policy Framework Act, which would allow them to proceed with new tenders.
These Regulations aim to use public procurement as a lever to empower black-owned businesses. But, Afribusiness argues that the Procurement Regulations are inconsistent with the Act.
The ruling by the court in the case brought by Afribusiness, challenging the 2017 Procurement Regulations Act is creating confusion among government departments.
Media statement with further communication on the Constitutional Court Judgement regarding the Preferential Procurement Regulations, 2017 @GovernmentZA pic.twitter.com/LbQzOwoi0U
— National Treasury (@TreasuryRSA) May 13, 2022
Afribusiness won the case arguing that the regulations were unfair because they allowed for “pre-qualifications” to be set for tenders. Now Treasury says organs of state can apply for exemptions from certain provisions of the Preferential Procurement Policy Framework Act.
But, legal officer, Tian Alberts from Sakliga, says the exemption clause was not designed to deal with thousands of applications.
“We already know that there are backlogs with the consideration of the exemptions. The reason for this is the exemption procedure and procurement act was never designed for exemptions on a large scale as the treasury is now envisaging, these are ad hoc exemptions.”
In a statement released on Friday, National Treasury says it has never prevented nor prohibited organs of state from procuring goods and services. It notes the urgency of the request for exemption in the procurement regulations.
And that those organs of state which are granted exemptions may continue to procure goods and services using their procurement policy in place, while the wait continues until new regulations are in place.
BBBEE Commissioner, Zodwa Ntuli say the commission welcomes Treasury’s clarity and says this will open opportunities for black businesses owners.
“As the BBBEE commission we welcome the clarity by the national treasury to organs of state on procurement of goods and services. This has been a subject of confusion for many organs of state as well as the black entrepreneurs and businesses that rely on procurement from government to sustain their businesses and livelihood. This clarity unlocks opportunities for these many black entrepreneurs and will want to urge all organs of state as they implement the procurement policies as guided by the national treasury that they ensure that they apply the codes of goods practice for BBBEEE in the implementation of these policies.”
Public Service and Commercial Union secretary general, Tahir Maepa, says the courts failed to understand the depth of these regulations. And its implications to previously disadvantaged small to medium businesses owners.
“The apex court once they’ve decided unfortunately, it leave no room to maneuver but they should have really tried and applied their minds in terms of the judgement as right as it may be, but it really cast aspirations into whether the constitutional court is really looking after all citizens or is it just looking at some citizens because yes we may have lost but you must look at the laws of the country with the context of our past.”
According to the Public Service and Commercial Union — one-trillion Rand is spent a year through the public service procurement service.
