Who knows how to implement the “Qualification Criteria” in tenders?



30-10-2023
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Taranis
Source

The lack of guidance on how to implement Section 10 of the Broad-Based Black Economic Empowerment Act (BBBEE Act) in the preferential procurement ecosystem, is of critical concern.



This Section amongst other things gives instructions that a “Qualification Criteria” must be used in procurement and it creates confusion as to whether it should be interpreted as meaning that a “B-BBEE Scorecard” could be used to score tenders.



I am of the view that the Constitutional Court already answered that question.



For purposes of the query as per the headline, this posit is not about whether the B-BBEE Act trumps the PPPFA, per se, but alludes to the absence of the lack of guidance on how to implement Section 10 pertaining to the aspect of “Qualifying Criteria” in the preferential procurement sphere.



The Act does not provide specific guidance on how to do this and consequentially it has led to a great deal of confusion and uncertainty, and it has made it difficult for organs of state to comply with it, when either drafting their procurement policies or issuing tenders with a “Qualification Criteria”, for that matter.



Bearing in mind that each one of us has our own interpretation on this issue, despite the fact that the million Rand question remains, as to where it is stipulated in law, as to how and when we should actually apply the “Qualification Criteria”.



If we do not have a clear stipulation on how and where it should be implemented, does it mean that each and every organ of state can implement it, as it deems fit and still take cognizance of what the National Treasury advises in terms of not using the ‘B-BBEE Status Level of Contributor’ as a “Specific Goal”, for points?



The Draft Public Procurement Bill (PPB) on the other hand merely states that the Minister, “Must make regulations regarding circumstances and procedures for pre-qualification of bidders.”



Based on that power given to the Minister, could we speculate that the B-BBEE Status Level Contributor of a bidder could in future be used as a barrier to entry by means of a “Qualification Criteria” or even regarded as a “Specific Goal” considering that the PPB will repeal the PPPFA?



According to Gerrit Davids, lead advisor at TaranisCo Advisory, tendering agency, “In the absence of guiding organs of state on how to implement the “Qualification Criteria”, it has a number of negative consequences including creating confusion as to whether they are complying with the law or not.”



Davids says, “Bidders are also left confused at present since some tenders afford preferential points for “Specific Goals” and others for the B-BBEE Status Level Contributor”.



“The confusion continues”, remarked Davids.



Contact: Gerrit Davids. Lead Advisor | TaranisCo Advisory CC  



Mobile. +27 (0) 82 496 1657 E-mail:  gerrit@taranisco.co.za 

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