Public Procurement Act unconstitutional, says Winde

Western Cape premier Alan Winde says the Public Procurement Act signed into law last week by President Cyril Ramaphosa is unconstitutional, and has urged that consultations take place to address his concerns. 

The act imposes a single procurement framework on all organs of state and includes preferential procurement provisions such as set-asides for the historically disadvantaged, mandatory subcontracting and local procurement in designated sectors if feasible. 

Winde and provincial finance minister Deidre Baartman have written to Ramaphosa raising their serious concerns over the constitutionality of the act. 

“We firmly believe that the act in its current form does not pass constitutional muster as it usurps the autonomy of provinces and municipalities in adopting their own preferential procurement policies,” Winde said in a statement.

He and Baartman point out in their letter to Ramaphosa that the constitution “envisages that organs of state have a discretion to decide whether to adopt a preferential procurement policy. This act is the national government drafting policy, and usurping the autonomy of organs of state, instead of providing a framework.” 

The Western Cape government has requested that consultations be held urgently with provinces and municipalities to address the concerns about the act and that it not be brought into operation until the concerns have been resolved. 

“The act will impose significant costs on the procurement process as well add to the administrative burden involved in procurement — it will be a handbrake on all systems and processes. This in turn will affect service delivery at a time when we as the provincial government are doing everything, we can to improve services for our residents,” Winde said. 

Baartman noted that the process followed in drafting the legislation was “woefully inadequate”. Not all public input was considered nor was the public given all relevant information on which to engage.  

The Western Cape government is of the view that the National Assembly and National Council of Provinces (NCOP) failed to comply with their constitutionally imposed duties in several respects.

These included that the comment periods for public comment were too short; National Treasury admitted that it did not consider all public comments received; it appeared that neither the National Assembly nor the National Council of Provinces adequately assessed the financial implications of the bill on national, provincial, and local government, nor did they provide the public with information on these financial implications; and the bill adopted in the National Assembly was substantively different to the bill the NCOP took to the public.

ensorl@businesslive.co.za