Abstract
South Africa's public procurement system is accorded constitutional status, establishing fundamental requirements for the operation of the system. The application of these constitutional system requirements and their interpretation in the judicial adjudication of procurement cases have highlighted the tension between the administrative, or process-centric, legal requirements and the system-centric nature of procurement procedures. The importance of a deterministic approach for procurement decision-making can be considered from two angles – the certainty of the procurer in the conformity of its own conduct and external certainty to diminish the risk of unnecessary challenge.
 This article revisits the foundational rationale for system-based procurement procedures and associated decision-making for its potential for finding a deterministic approach to balancing the legal requirements, both system- and process-based. These principles are tested against a selection of adjudicated outcomes to formulate practical recommendations for practitioners aimed at deterministic decision-making in the procurement process.
Highlights
A feature of South Africa's public procurement regime is the constitutional status accorded to its underlying principles
The interpretation and application of these constitutional system requirements in the adjudication of procurement cases have been varied - from the direct application of the constitutional requirements to the “proper” approach set out in the landmark 2014 judgement, Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social Security Agency.[2]. The latter approach dictated interpreting the constitutional requirements of the public procurement system through the lens of administrative law and pronounced on elements of the balance required between the administrative or process-centric legal requirements and the system-centric nature of procurement procedures
The clarity of compliant decision-making emerges as a goal over and above the goal of compliancy itself and a deterministic approach is argued to be fundamental to the design and operation of the public procurement system
Summary
A feature of South Africa's public procurement regime is the constitutional status accorded to its underlying principles. This article revisits the foundational rationale for system-based procurement procedures and associated decision-making dynamics for their potential for finding a deterministic approach for the dual application of system and process legal requirements. The clarity of compliant decision-making emerges as a goal over and above the goal of compliancy itself and a deterministic approach is argued to be fundamental to the design and operation of the public procurement system. South African Social Security Agency 2014 1 SA 604 (CC) (hereafter Allpay)
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