Masters Degrees (Public Law)

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Browsing Masters Degrees (Public Law) by browse.metadata.advisor "Bolton, Phoebe"

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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.