New Treasury regulation spells the end of compulsory BEE in state procurement

Following a five-year court battle, Sakeliga is welcoming a new Treasury regulation for public procurement that completely omits BEE and local content requirements when tendering to do business with the state. Sakeliga CEO Piet le Roux says it marks the end of "compulsory BEE and local content requirements in state procurement. That's a very harmful arm of the octopus [state] that has now been cut off." In 2017 Sakeliga went to court to challenge regulations put out by then Finance Minister Pravin Gordhan making it possible for state entities to preemptively exclude bidders based on their BEE or local content status. In February this year, the ConCourt ultimately found the minister had no powers to prescribe to entities of the state what their preferential procurement policies should be. That discretion resides with entities themselves. But, while Treasury may no longer mandate, prescriptively, that BEE or local content requirements must be taken into account in a tender, a municipality or SOE could still insist on it - as long as the tender process doesn't fall foul of section 217 (1) of the Constitution. That particular section states: "When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective." Learn more about your ad choices. Visit megaphone.fm/adchoices