My BEE life revolves around the Business Day. I do recommend that you read financial publications when it comes to BEE, they don't spend much time (if any) on the emotional and sensational. It does give you a somewhat balanced view.
Today's lesson is taken from an advertorial on page 33 of the 8 August, 2006 edition. Goes under the title of "Procurement in South Africa" and is drawn from an interview with Roger Wakefield of Werksmans Attorneys.
The South African constitution requires that all persons tendering for State contracts must be treated equally. However the constitution provides for preferential treatment to be given to historically disadvantaged individuals. (This means that the Coega tender was constitutional).
Wakefield then refers to the Preferential Procurement Policy Framework Act which states clearly that only the bid with the HIGHEST NUMBER OF POINTS may be selected. This is where Coega may have gone wrong.
And the remedies. Section 5 of the Promotion of Administrative Justice Act (3 of 2000) "provides that a person whose rights have been adversely affected by administrative action may request the administrator to furnish written reasons which must be provided within 90 days of the request."
The administrator's reasons (I'm typing this verbatim off the article - I can't seem to find it on Google) may assist the unsuccessful tenderer in determining whether the procurement process was biased, procedurally unfair, irrational or contravenes any law. If an administrative action is irregular the affected person may apply to a court for a review of the administrative action and the court is empowered, amongst other things, to remit the matter back for reconsideration.
This would appear to be what is happening in the Coega case.
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