The Reality of the Public Procurement Act 28 of 2024

Keen eyed suppliers and Organs of State alike will have noticed that the President of the Republic assented to the Public Procurement Bill on 23 July 2024, bringing it into law. As a caveat, the effective date of the Public Procurement Act 28 of 2024 (“the Act”) is yet to be promulgated.

The Act is a culmination of nearly 10 years of work[1] which saw several remarkably different draft bill texts. Ultimately, the Act brings with it a plethora of changes to the public procurement status quo and amends or repeals no fewer than 17 other pieces of legislation in an effort, inter alia, to consolidate the fragmented public procurement framework and create a single framework.[2]

Arguably the most notable and far reaching of the repeals are the entire Preferential Procurement Policy Framework Act 5 of 2000 and Preferential Procurement Regulations 2022, Section 76(4)(c) of the Public Finance Management Act (PFMA) 1 of 1999 and PFMA Regulation 16A (which applies to procurement by national, provincial and certain scheduled entities), Chapter 11 (Goods and Services) of the Local Government: Municipal Finance Management Act (MFMA) 56 of 2003 and the MFMA Supply Chain Regulations (which applies to procurement by municipalities and municipal entities).

Nonetheless, the hard work has only just started, and, notwithstanding any legal challenges to the Act, there is still a long path to traverse before we may see any implementation of the provisions. The primary cause of this protraction lies in the drafting of mandatory regulations.

Numerous sections of the Act mandate the Minister of Finance to prescribe critically important provisions, without which the Act is impotent. By way of example, preferential procurement under Chapter 4, procurement systems and methods under chapter 5, the bid committee systems, the entire bidding processes and even emergency procurement[3] are all delegated to the Minister of Finance to determine by way of regulations.

In reality, in order to begin procuring under the Act, Organs of State need to develop their empowering document; the procurement policy. However, without at minimum Chapters 4 and 5 of the Act, together with mandatory section 63 regulations of the Act being implemented, Organs of State are blind and are unable to cross the starting block.

Whilst the debate is ongoing as to whether regulations should be promulgated comprehensively or piecemeal, the process of full implementation of the Act will be long. Mercifully, the Act at Section 63(2)-(3) prescribes a thorough consultation process with both affected Organs of State (albeit indirectly) and the public at large.[4]

All Organs of State are encouraged, and particularly those with their own peculiar procurement needs, to meaningfully engage in the consultation process. Further, public participation by bidders and suppliers to Organs of State is of equal importance to challenge the inefficiencies and obstacles experienced by the public during procurement processes.
Fundamentally, the country at large has a unique opportunity to ensure that a Public Procurement framework gives true expression to Section 217 of the Constitution, and serves all stakeholders effectively.

Come join us on Wednesday 21 August 2024 as Dinesha Deeplal, a Director in our Corporate Advisory and Forensic Services Department, critically analyses “The Reality of the Public Procurement Act 28 of 2024”

Hope to see you there!

Date: Wednesday, 21 August 2024
Time: 09:00 to 10:30
Webinar link: Click here to join meeting (Microsoft Teams)

Chad Phillips
Senior Associate | LLB LLM (Public Procurement Regulation and Policy)

Together with:
Dinesha Deeplal
Director | LLB