
One of the functions of the Contractual Affairs division of the Association is to assist member firms with problems experienced relating to the procurement policies and practices of public sector clients. Member firms approach the SAACE to engage their clients on these matters on their behalf, and in so doing protect themselves against possible prejudice.
The following are some instances that constitute procurement practices that are frequently being implemented by public sector clients, and do not comply with government procurement legislation, regulations and prescripts.
Illegal set-asides:
The practice of excluding certain categories of bidders, due to them not being able to achieve a certain minimum threshold score for Black Economic Empowerment, also known as set-asides, is in conflict with the SA Constitution, 1996 and therefore illegal. The National Department of Treasury has issued a circular confirming this (MFMA Circular No. 29).
Calls for tender proposals within six months of a previous call for proposals for the same or substantially the same scope of work:
The practice of cancelling and re-inviting tenders within a six month period, for the same or substantially the same scope of work is seen to be prejudicial to SAACE member firms and non-member firms alike.
The cancelling and re-invitation of tenders is only permissible in very specific circumstances according to the Regulations (2001) promulgated in terms of the Preferential Procurement Policy Framework Act (“PPPFA” Act No.5, 2000). Regulations 10(1) – (3) describe the situation where all tenders values received were above R500 000 and the 80/20 preference point system was used or where all tenders received were below R500 000 and the 90/10 preference point system was used. In such cases the tender invitation must be cancelled and tenders must be re-invited. The Construction Industry Development Board (“CIDB”) has, however, indicated that to overcome this problem a client can indicate upfront in the tender criteria that the preference point system used will depend on the value of the tenders received.
In terms of the CIDB Standard for Uniformity, which is binding on all organs of state, and employer may not subsequent to the cancellation or abandonment of a tender process or the rejection of all responsive tender offers, re-issue a tender covering substantially the same scope of work, within a period of six months unless only one tender was received and such tender was returned, unopened, to the tenderer (CIDB Standard for Uniformity Annexure F, F.1.5.2)
The SAACE Code of Conduct (Clause 2.7) prohibits member firms, where no satisfactory reasons exist, to submit a proposal, whether priced or un-priced, for the same or substantially the same project for which proposals have previously been submitted, to the same body, within the preceding six months. The SAACE has in the past instructed its member firms not to tender for a specific project in the above circumstance.
Limited time to submit tenders:
In this regard, the National Treasury “Guide for Accounting Officers of Municipalities and Municipal Entities” states that the Accounting Officer should, among others, ensure that “…... the information contained in the public advertisement must include: - the closure date for submission of bids, which may not be less than 30 days in the case of transactions over R10 million (Vat included), ….. or 14 days in any other case, from the date on which the advertisement is placed in a newspaper…”. The document does mention that the Accounting Officer may determine a shorter period if it can be justified on the grounds of urgency or an emergency or in an exceptional case where it is impractical or impossible to follow the official procurement process. A note is, however, added that “a lack of or bad planning does not constitute an urgency or emergency”.
Insufficient scope of services:
In terms of the National Treasury Guideline for Accounting Officers of Municipalities and Municipal Entities, Requests For Bids should be accompanied by a clear Terms of Reference (“TOR”) prepared by the Accounting Officer. For more complex projects, a Request For Proposals must be made where consultants are requested and encouraged to propose their own methodology and to comment on the TOR in their proposals. The TOR accompanying Requests For Bids should define as clearly as possible the objectives, goals and scope of the assignment including background information to facilitate the consultant in the preparation of its proposal. It should be compiled in such a manner that consultants are able to propose their own methodology and staffing et cetera.
The Contractual Affairs Division of the Association also involves the CIDB and National Treasury in the correspondence relating to the above and other problematic practices and policies. In the past this has proven very effective, and many positive results have been achieved.
Quentin Koen
Manager: Contractual Affairs
The Association congratulates Quentin Koen (Pr Eng) on recently obtaining his BA LLB.

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