African Public Procurement Law Journal最新文献

{"title":"Complaints Review and Remedies Mechanisms under the Ethiopian Public Procurement System: A Critical Review of the State of Law & Selected Practices","authors":"Atakilti HaileSelassie GebreMichael","doi":"10.14803/8-2-43","DOIUrl":"https://doi.org/10.14803/8-2-43","url":null,"abstract":"The Ethiopian Public Procurement & Property Administration Proclamation No. 649/2009 is the primary legislation regulating public procurement procedures, complaint review mechanisms, remedies, administration and disposal of public property. It is supplemented with a Procurement Directive aiming at operationalizing the principles and rules embodied in it. This Public Procurement system has largely modeled itself from the 1994 UNCITRAL Model Law on Procurement of Goods, Construction and Services which features a complaints review mechanism with compulsory hierarchical complaint review mechanisms. The procuring public bodies assume mandatory first instance review jurisdiction on complaints lodged against their own decisions. The complaints review board and the courts are respectively the higher levels of review bodies. It has been 12 years since this law has been put in action and this work aspires to examine and analyze the state of law and practice on suppliers’ complaints, review mechanisms and remedies by drawing relevant insights from the 1994 & 2011 UNCITRAL Model Laws. It is focused on the analysis of the rights of suppliers to file complaints, the complaint review bodies and their scope of competence, the powers of the courts and the award of remedies. It has been established that the Ethiopian public procurement complaints review system is constrained by obstacles that the law opted to include prohibitive clauses on the amenability of major procurement decisions which practically impairs the effectiveness of the review system. The prohibitions on the reviewability of procurement decisions limit the availability of review to be at the later stage of the procurement procedure and result in far fewer remedies. Moreover, the review board’s features of independence and requirements of professionalism are fundamentally compromised. Review jurisdiction by the courts has been very uncertain until the cassation interpretation by the Federal Supreme Court in the Jedaw case made a settling judgment.","PeriodicalId":424456,"journal":{"name":"African Public Procurement Law Journal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133779788","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reforming Emergency Procurement to Protect against Corrupt Decision-Making while Ensuring Swift and Unencumbered Procurement","authors":"C. Rankin","doi":"10.14803/8-2-46","DOIUrl":"https://doi.org/10.14803/8-2-46","url":null,"abstract":"Procuring officials are afforded greater discretion when it comes to carrying out procurement during emergencies. As such, they have more freedom to deviate from standard procurement practices. Under the current South African procurement framework, it appears to be that little is done to ensure that such discretion is not exercised in a fraudulent or corrupt manner. Such an anti-corruption objective remains important in public procurement, even during emergencies. The prevalence of corruption in procurement undertaken during the COVID-19 pandemic provides unfortunate evidence of such a need. However, emergencies also demand a swift ability to procure goods and services. In this article I discuss the potential of utilising guidelines to limit the discretion granted to procuring officials; oversight throughout emergency procurement, and centralised procurement as a means through which an anti-corruption objective can be introduced into emergency procurement. The ability of each of these suggestions to serve as an effective anti-corruption mechanism is analysed alongside their ability to ensure swift procurement without unnecessary impediment.","PeriodicalId":424456,"journal":{"name":"African Public Procurement Law Journal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114170472","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Public Procurement Regulation in Africa Bibliography","authors":"Aplu","doi":"10.14803/2-1-17","DOIUrl":"https://doi.org/10.14803/2-1-17","url":null,"abstract":"This bibliography lists all academic materials published in English on matters relating to public procurement law in Africa. It is up to date to 31 December 2021.","PeriodicalId":424456,"journal":{"name":"African Public Procurement Law Journal","volume":"125 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122507455","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"TIME TO GO BACK TO FIRST PRINCIPLES: A CRITICAL ANALYSIS OF THE 2017 PROCUREMENT REGULATIONS REVEALS THEM TO BE SHORT OF THE LEGALITY-CUM-RATIONALITY MARK","authors":"L. Kohn","doi":"10.14803/6-1-24","DOIUrl":"https://doi.org/10.14803/6-1-24","url":null,"abstract":"Tendering has become an increasingly messy, high-stakes business; a disconcerting fact given the essential role public procurement plays in ensuring the delivery of vital goods and services to the public (using public money). The new (2017) Procurement Regulations complicate matters through, in particular, their allowance of pre-qualification criteria based on preference. In this article, I analyse three key ways in which the new Regulations seek to go further in the name of empowerment at the expense of competitiveness and hence cost-effectiveness. I illustrate that while not all of these new tools fall short of the legal mark, the use of tender conditions based upon preference for the purposes of pre-qualification, is unlawful and irrational given the methodology under the empowering Procurement Act and the need to give effect to all the constitutional procurement principles in a balanced way. I consider the likely practical knock-on effects of this; namely a perverse increase in fronting practices and hence diminished substantive empowerment, and an increase in litigation for non-compliance with tender conditions. On the latter score, I provide a jurisprudential snapshot of our courts’ varying approaches to this assessment, culminating in an analysis of the AllPay test which I caution should be applied correctly and consistently to reduce the increasing lack of certainty in the procurement arena – recently aggravated by our highest court’s greenlight in Gijima for state self-review via the flexible principle of legality. I conclude by making some suggestions for reform that would be congruent with our blueprint constitutional ‘1 st principles’ and perhaps alleviate some of the pressure on our resource-stretched courts.","PeriodicalId":424456,"journal":{"name":"African Public Procurement Law Journal","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114894082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"CONFLICTING LEGAL REGIMES VYING FOR APPLICATION: THE OLD ADMINISTRATIVE CONTRACTS LAW OR THE MODERN PUBLIC PROCUREMENT LAW FOR ETHIOPIA","authors":"Tecle Hagos Bahta","doi":"10.14803/4-1-23","DOIUrl":"https://doi.org/10.14803/4-1-23","url":null,"abstract":"The Ethiopian Civil Code of 1960 contained provisions on administrative contracts. Such contracts were little known in Ethiopia during those days. However, in the absence of any legal system to govern contracts entered into by administrative authorities, the redactor of the Civil Code felt it necessary for Ethiopia to adopt the French administrative contract principles. Hence the incorporation of those principles into the Civil Code although the redactor himself admitted that it was peculiar for any Civil Code to contain administrative law principles. Since the promulgation of the Civil Code in 1960, the provisions on administrative contracts remained by and large unknown and virtually ineffective in terms of their application in governing contractual relationships between administrative authorities and private contracting parties. In early 1990s, as part of its modernization efforts, Ethiopia enacted new laws consisting of modern public procurement law principles in order to overhaul the then existing weak and corrupt public financial management and administration, and the public procurement systems. These new laws were followed and supplanted by two successive proclamations in 2005 and 2009 both on financial administration and public procurement. However, despite what it seems to be a clear and deliberate move by the legislature, as discussed in this work, to abrogate the old administrative contracts provisions in the Civil Code, the courts in Ethiopia take cognizance thereof and apply them whenever these provisions are invoked by disputing parties. Thus, the two conflicting legal regimes are made to co-exist in the Ethiopian legal system thereby causing confusions in the rights and obligations of contracting parties, particularly private companies and individuals entering into public procurement contracts with administrative authorities. In this work, the nature and peculiarities of administrative contracts, how the principles enshrined in such contracts evolved in Ethiopia, and the existing problems emanating from the dilemma of trying to preserve the old administrative contracts provisions are examined and analyzed. Furthermore, the provisions of the successive proclamations by which these administrative contracts law provisions have been repealed have been critically assessed. Finally, it is shown that Ethiopia has enacted a full-fledged modern public procurement laws that are modelled on the UNCITRAL Model Law on Procurement of Goods, Construction and Services (1994) which should prevail over the old administrative contract rules in the Civil Code.","PeriodicalId":424456,"journal":{"name":"African Public Procurement Law Journal","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127591741","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"VIABILITY OF BIDDER REMEDIES UNDER SECTION 62 OF THE SOUTH AFRICAN MUNICIPAL SYSTEMS ACT","authors":"K. Udeh","doi":"10.14803/3-2-12","DOIUrl":"https://doi.org/10.14803/3-2-12","url":null,"abstract":"This article examines the extent to which an unsuccessful bidder is afforded a viable appeal remedy under section 62 of the Local Government: Municipal Systems Act No 32 of 2000, following the decision of the High Court in Loghdey v City of Cape Town (100/09) [2010] ZAWCHC 25. Until this case held to the contrary, it was taken for granted that the section generally accorded unsuccessful bidders the right to internal appeal against the award decision of a municipality’s delegated authority. Although a later decision of the Supreme Court of Appeal in CC Groenewald v M5 Developments (Pty) Ltd [2010] ZASCA 47 para 21, held that section 62 appeal is available to unsuccessful tenderers, it seemingly did not settle the issue; as it has been suggested that the two cases are distinguishable. Besides, consistent judicial interpretation of section 62(3) has further cast doubt on the viability of bidder remedies under the section. It is argued here that the decision in Loghdey is flawed; and has been effectively overruled in CC Groenewald . Thus, section 62 definitely affords internal appeal rights to unsuccessful bidders against award decisions of municipalities’ delegated authority. Furthermore, reasons are presented to urge the court to reconsider and depart from its current interpretation of section 62(3) that limits the viability of bidder remedy under section 62.","PeriodicalId":424456,"journal":{"name":"African Public Procurement Law Journal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134496180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE QUIET REVOLUTION OF ISRAEL’S PUBLIC PROCUREMENT LAW","authors":"Hadas Peled","doi":"10.14803/9-1-44","DOIUrl":"https://doi.org/10.14803/9-1-44","url":null,"abstract":"This article gives a legal-historical outlook on the development of the Israeli procurement law, the main achievements and challenges, and the “quiet revolution” it is going through. This article analyses the respective roles of the three branches: the legislature, the executive, and the judiciary from an institutional vantage point, in designing the public procurement legal framework. This, while considering the greater socio-political and economic context. Israel’s public procurement regime is undergoing significant changes. The most recent changes involve a greater degree of professionalism by different governmental units; e-procurement; e-tendering; and a pilot of e-guarantees. Furthermore, the government is promoting public-private partnerships (PPPs) by engaging in more sophisticated long-term procurement models. Moreover, the decision of the Supreme Court of Israel in Bibi Roads Earthmoving & Development Ltd v Israel Railways Ltd is an important milestone representing a formalistic approach in contract law interpretation of government procurement contracts. This decision had a profound impact on the procurement cycle as a whole. A proposal for a revision of the Mandatory Tenders Regulations, aimed at increasing competition and diversity of suppliers by giving the government/executive more discretion in the procurement process, is now on the table. Within this context, the judicial overhaul promoted by the 37th government and its ramifications on public procurement law is briefly discussed.","PeriodicalId":424456,"journal":{"name":"African Public Procurement Law Journal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122388049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"PRE-QUALIFICATION AND PREFERENCE IN PUBLIC PROCUREMENT: A CRITICAL REFLECTION ON MINISTER OF FINANCE V AFRIBUSINESS NPC","authors":"Peter Volmink","doi":"10.14803/9-1-49","DOIUrl":"https://doi.org/10.14803/9-1-49","url":null,"abstract":"The ruling by the Constitutional Court in Minister of Finance v Afribusiness NPC sounded the death knell for the 2017 Preferential Procurement Policy Framework Act (PPPFA) regulations. By a narrow majority, the Court dismissed an appeal by the Minister against a ruling by the SCA which declared the regulations invalid. This article offers a critique of both the majority and minority judgments. It calls into question the fundamental premise on which the majority’s reasoning was based, namely, that the Minister acted in breach of s 2(1) of the PPPFA which granted authority to organs of state (not the Minister) to determine their own preferential procurement policies. The article also criticizes the majority for not having used the opportunity to deal decisively with the question of pre-qualification criteria in tender processes. In his critique of the minority judgment, the author submits that the PPPFA and its regulations cannot be “rescued” through a strained interpretive process. The more candid approach is to acknowledge that the framework created by the PPPFA falls far short of the standard envisaged in s 217(2), and that it should be replaced as a matter of urgency. The article concludes that, while the PPPFA is in force, organs of state should exercise caution before incorporating prequalification criteria in their procurement policies. The author argues that whilst there is no constitutional problem with the use of prequalification criteria based on race or gender per se, this cannot be attained through a moribund piece of legislation, such as the PPPFA. New legislation is needed, which harmonizes the principle of legality with the imperative of remedial equality.","PeriodicalId":424456,"journal":{"name":"African Public Procurement Law Journal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126256577","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}