Concourt Asked to Invalidate Public Procurement Bill

Cape Town Mayor Geordin Hill-Lewis says the City has approached the Constitutional Court to invalidate the Public Procurement Act. Notice of the City’s application has been served on Parliament and President Cyril Ramaphosa. The City previously warned that the Bill will slow down local service delivery and undermine the constitutional autonomy of local government. The City’s full concourt application is available here: Public Procurement Bill Application Read more below:

Cape Town Mayor Geordin Hill-Lewis says the City has approached the Constitutional Court to invalidate the Public Procurement Act. Notice of the City’s application has been served on Parliament and President Cyril Ramaphosa. The City previously warned that the Bill will slow down local service delivery and undermine the constitutional autonomy of local government. The City’s full concourt application is available here: Public Procurement Bill Application Read more below:

The City’s application points out various problems which render Parliament’s adoption of the Bill unlawful, including:

• Seven of nine provinces did not have lawful final mandates to vote on the bill in the NCOP
• Inadequate public participation timeframes and notice periods by Provinces and the NCOP
• Incorrect information in reports considered by the NCOP and NA
• The National Assembly failed to consult on changes to Chapter 4, did not consider all public comments, and failed to comply with Rule 276 for introducing a Bill

‘We believe this Bill should be invalidated due to fatal shortcomings in public participation and parliament’s procedures.

‘Beyond these issues, it is vital that any new consideration of the Bill takes into account the massive red tape burden it will place on local government, and the unconstitutional interference it permits in municipalities.

‘At a local level, we often have to procure fast to respond to urgent water, sanitation, electrical, waste, and environmental issues. 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.

‘This Bill allows direct interference in municipal procurements by Provincial Treasuries and a new national Public Procurement Office, who 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,’ said Mayor Hill-Lewis.

The City has wide-ranging concerns about new red tape introduced in the Bill, including:

• Municipalities won’t be able to maintain their own database of accredited suppliers, and payments to suppliers will need to be integrated with a national database
• Centralising all national procurement via a Public Procurement Office (PPO) further runs the risk of nationwide disruptions to municipal procurements if the central system goes offline
• Municipalities will no longer have the power to lawfully deviate from procurement regulations for urgent service delivery without centralised approval via the PPO
• Spurious tender appeals may hold up service delivery as the Bill limits the ability to conclude contracts while tender awards are reviewed

Mayor Hill-Lewis said that the Bill will also undermine infrastructure investment.

‘Infrastructure can often be delivered much faster via public private partnerships, but the Bill mirrors existing municipal legislation which makes PPP’s too complex and time-consuming for municipalities to even attempt. Cutting red tape around infrastructure upgrades is vital to us here in Cape Town, as we aim to deliver on our SA-record R120bn infrastructure pipeline over ten years, with 75% of infrastructure spending directly benefitting lower income households. 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,’ said the Mayor.

The City is further concerned that around 36 elements of the Bill require new regulations, exposing local government to hidden cost implications and red tape burdens. Further, the Bill positions the National Finance Minister as a regulatory authority over local government, which is inconsistent with the Constitution, Municipal Systems Act and the Municipal Finance Management Act.