THINKING THROUGH THE REGULATION OF DIFFERENT TYPES OF PROCUREMENT PROVIDED FOR IN THE PUBLIC PROCUREMENT ACT

Abstract

The Public Procurement Act of 2024 was signed into law during July 2024. The regulations necessary to support its implementation are yet to be drafted. This contribution identifies three basic types of procurements and contextualises the concepts of procurement and procurement system (formerly referred to in South Africa as a supply chain management system) which are embedded in the Act. Thereafter the study considers the framework within which procuring institutions are required to implement their procurement system, which the Minister needs to prescribe, with a focus on what is referred to in the Act as strategic procurement and what is understood by this term. The application of strategic procurement in the four areas where this form of procurement needs to be promoted is assessed, namely procurement in other countries, the provision and maintenance of infrastructure and capital assets, the disposal and letting of assets and the stimulation of innovation. Thereafter, the potential for framing the regulations around international standards such as ISO 10845-1 (soft law) to address not only the promotion of strategic procurement but also the methods, procedures and award criteria to be addressed in the prescribed framework, is explored and demonstrated. Finally, the study considers the capabilities within government to develop the necessary regulatory framework for the implementation of the Act and offers three strategic approaches to regulate strategic procurement using a soft law approach.