Department of Public Law

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Browsing Department of Public Law by Author "Anthony, Allison Megan"

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    The legal regulation of construction procurement as a relational construct in South Africa
    (Stellenbosch : Stellenbosch University, 2018-03) Anthony, Allison Megan; Bolton, Phoebe; Quinot, Geo; Stellenbosch University. Faculty of Law. Department of Public Law.
    ENGLISH ABSTRACT : Public procurement is generally considered to be the acquisition of goods or services by the government. It contributes a large deal to the country’s economy and involves the expenditure of public funds. Due to its importance, public procurement is regulated by section 217 of the Constitution which provides that organs of state when contracting for goods or services must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective. Public procurement in the construction industry forms part of the regulation of general public procurement under section 217. Construction procurement is also regulated by sector specific legal rules and constitutes a large part of the country’s expenditure budget. Public procurement is regulated by a hybrid legal system. This means that both public and private law apply to the procurement process. Based on the public nature of public procurement, private law is ill suited to the nuances of the complex, multi-party procurement process. Moreover, the doctrinal nature of private law is inadequate in addressing the needs of the various role-players involved in public procurement. This is exacerbated by the even more complex and highly specialised field of construction procurement which often lasts for long periods of time. The question this dissertation aims to address is whether an alternative approach to public procurement law may assist in the manner in which it is regulated given the various inadequacies experienced. More specifically, the aim is to determine whether a relational perspective or understanding of construction procurement law in South Africa assists in formulating regulation in this area of law. Chapter one sets out the research question to be answered, the hypothesis on which the dissertation is based and the methodology employed. Chapter two establishes the definition of construction procurement, its legal regulation, and recommends the separate categorisation of construction works and thus construction procurement in section 217 of the Constitution. Chapter three addresses the nature of the legal rules which regulate construction procurement and the manner in which these rules should be interpreted. Following this, chapter four investigates relational contract theory created and developed in the American private law, its nature and whether it can be applied in South African public procurement law. This chapter recommends a relational procurement law to address the current inadequacies in public procurement law. Public-private partnerships form a large percentage of the country’s infrastructure budget and are increasingly used as a means to deliver infrastructure in South Africa. As such, chapter five establishes whether relational procurement law can be implemented in the public-private partnership legal regime. In addition to the acquisition of goods or services, public procurement can be used for the promotion of collateral objectives such as socio-economic goals in the form of preferring certain groups of individuals when government contracts are awarded. This has been especially important in the South African context. Therefore, the working of relational procurement law within the preferential procurement regime is important. Chapter six thus discusses a relational preferential procurement law. The concluding chapter collectively refers to that discussed in preceding chapters including the conclusions reached and attempts to answer the research question as to whether a relational understanding of construction procurement law in South Africa assists the regulation of this area of law.
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    The legal regulation of construction procurement in South Africa
    (Stellenbosch : Stellenbosch University, 2013-03) Anthony, Allison Megan; Bolton, Phoebe; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: In order for the government to function, it needs goods and services. It may acquire these goods and services by using its own resources, or by contracting with outside bodies. The latter method is generally referred to as public or government procurement. Government procurement usually contributes a large deal to a country’s economy and is therefore of great importance. With South Africa’s political transformation in 1994, the construction industry was used as the model for public sector procurement reform. The industry regulates all infrastructure and constituted 3.8% of the country’s gross domestic product (GDP) in 2011 with the private sector as its biggest client. The legal regulation of construction procurement in South Africa is therefore significant. Section 217 of the Constitution¹ sets the standard for government procurement in South Africa. Section 217(1) provides that organs of state in the national, provincial or local sphere of government or any other institutions identified in national legislation when contracting for goods or services must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective. Organs of state are not prevented from implementing procurement policies which provide for categories of preference in the allocation of contracts and the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination in terms of section 217(2). Section 217(3) in turn provides that national legislation must prescribe a framework in terms of which section 217(2) must be implemented. The rules for construction procurement in South Africa are found in the Construction Industry Development Board (CIDB) Act² and the Regulations to the Act.³ The Construction Industry Development Board has been established by the Act and is empowered to regulate construction procurement in terms of the Act and to publish best practice guidelines for further regulation and development of construction procurement. This thesis aims to answer the question as to whether the legal regulation of construction procurement complies with section 217 of the Constitution. Chapter one sets out the research question to be answered, the hypothesis on which the thesis is based and the methodology employed. Chapter two establishes the constitutional standard for government procurement in South Africa and is the standard against which the rules discussed in subsequent chapters are tested. Following this, the procurement procedures in terms of which supplies, construction works and services are procured are described and analysed in chapter three. It appears that the Regulations to the CIDB Act exclude contracts for supplies and services in the construction industry. Therefore, the qualification criteria for construction works contracts are examined in chapter four. Thereafter, the evaluation and award of construction works, supplies and services contracts are explained and analysed in chapter five. Government procurement may further be used for objectives not directly connected to the main goal which is the procurement of goods and services at the best possible price. It may also be used for the promotion of socio-economic objectives, for example. Therefore, in the sixth chapter, the use of government procurement as a policy tool in the South African construction industry is discussed and analysed. The concluding chapter collectively refers to what was discussed in the preceding chapters including the conclusions and attempts to answer the research question as to whether the legal regulation of construction procurement in South Africa complies with section 217 of the Constitution.