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.
