Abstract
In this article good governance in public procurement, with particular reference to accountability is discussed. The principle of providing adequate remedies in public procurement is put under the spotlight. This is done with reference to the decision in Steenkamp NO v Provincial Tender Board, Eastern Cape. In this case the Constitutional Court had to consider whether an initially successful tenderer could lodge a delictual claim for damages to compensate for expenses incurred after conclusion of a contract, which was subsequently rendered void on an application for review of the tender award. The applicable principles of good governance and the applicable provisions of the UNCITRAL Model Law on Public Procurement and the WTO plurilateral Government Procurement Agreement are analysed. This is done to enable an evaluation of the decision by the Constitutional Court in the above case. It is concluded that the South African public procurement system does in this instance comply with the basic principles of good governance with regard to accountability.PER/PELJ Vol. 2 2008: pp. 1-47
Highlights
It is a generally accepted principle of good governance that effective legal remedies should be available in the case of the breach of a legal duty by a procuring entity
In South African law, public tender processes are regarded as administrative processes, but once the tender is awarded, the parties conclude a contract where after their relationship is governed by the law of contract
Public and private law remedies may be available to aggrieved parties, depending on the stage in the procurement process and the status of the party
Summary
It is a generally accepted principle of good governance that effective legal remedies should be available in the case of the breach of a legal duty by a procuring entity. The Public Finance Management Act,[2] which regulates public procurement on national and provincial level, does not address the issue of delictual liability and the question is whether delictual liability would not be an (or the only) appropriate remedy in certain circumstances This contribution will focus on the reasoning of the various South African courts in the Steenkamp-case in order to establish whether the current legal position on delictual liability in the event of setting aside a tender award, is in conformity with the principles of good governance and the principles as set out in the UNCITRAL Model Law on Public Procurement (hereinafter referred to as the 'Model Law') and the General Procurement Agreement of the World Trade Organisation (hereinafter referred to as the GPA).[3]. Applicable principles of good governance and the mentioned international instruments
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