Procurement Law in 2022 – Where Do You Stand?

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PROCUREMENT LAW IN 2022 – WHERE DO YOU STAND?

Executive Summary

In 2017, the Minister of Finance (the Minister) gazetted the Preferential Procurement Regulations of 2017 (the 2017 Regulations) under section 5 of the Preferential Procurement Policy Framework Act of 2000 (the PPPFA).

In 2020, the 2017 Regulations were declared invalid and set aside by the Supreme Court of Appeal (the

SCA), with effect from 3 November 2021. That decision was taken on appeal to the Constitutional Court (the

CC) by the Minister. On 16 February 2022, the CC dismissed the appeal.

On 10 March 2022, new draft Regulations were gazetted (the 2022 draft Regulations).

In this circular we set out the consequences of the judgments and deal with the current and future state of tendering in the public sector.

The PPPFA

The PPPFA was enacted to give effect to section 217(3) of the of the Constitution, which required all spheres of government to procure in a manner that was fair, competitive, transparent, and cost effective.

The PPPFA provides that each organ of state must determine its preferential procurement policy and must implement it within the framework set out in section 2. The Act itself is broad and general.

The 2017 Regulations

The 2017 Regulations were promulgated to replace the Preferential Procurement Policy Regulations of 2011.

The Minister, acting in terms of section 5 of the PPPFA, adopted the 2017 Regulations on 20 January 2017.

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