Staatskontrakte ter verkryging van goedere, dienste en werke

Abstract

The study investigates legal and administrative aspects of the interaction between public sector and private enterprise effected by state procurement of goods and services. South African government contracts are, despite their elaborate regulation by statutory and administrative prescription, regarded as the subject matter of the private law of contract. In this regard, they may be distinguished from the contrats administratif of the French and related legal systems and resemble their British and, more closely, federal American counterparts. Important aspects of government procurement, notably the contractual capacity of organs of the state, those administrative procedures which precede the conclusion of agreements with contractors, and the right reserved to the state to rescind, in the public interest, a contract duly entered into, are nevertheless to be determined by the principles of administrative law. The budgeting, audit and parliamentary control of procurement expenditure, along with the invitation of suppliers' bids and the award of contracts, are the principal administrative aspects of the study and are analysed in Chapters III and IV. The pricing of government contracts in South Africa is, with scant exception, determined by competitive tender. Restrictive trade practices and bid preferences awarded by procuring agencies in the pursuit of socio-economic policies were found, in Chapter V, to impede the operation of free market forces. The law of contract features most prominently in the performance of contracts and is examined in Chapter VI. The discussion, depicting the essential provisions of six standard form contracts commonly employed by government for stores and works, is fairly concise. References to British and American procurement law and practice, a consistent feature of the study, are, however, extensive. In South Africa, the settlement of procurement disputes is generally entrusted to the ordillary courts. Chapter VII deals with a number of special remedies accorded to the state, procedural prerequisites for the institution of civil actions against the state, and alternatives to litigation, especially arbitration and administrative appeal. The final chapters survey the efficacy of procurement as an instrument of socio-economic policy, and advance a few recommendations regarding the proper law and more efficient administration of government procurement.