Supply Chain Management Processes
• We have an extensive understanding of and practical experience with Procurement law. We offer this expertise to the three spheres of government, constitutional institutions and private business alike.
• Notably, Tebogo and Bonang acted as attorneys for the National Lotteries Commission (“NLC”) in the evaluation and adjudication of the tender process and the subsequent extensive litigation consequent upon the award of the Third Lottery Licence, worth ZAR 85 billion at the instance of Gidani, the unsuccessful bidder that had been the
previous holder of the licence. This litigation was finally concluded in favour of the NLC and the Minister of Trade and Industry. We also assisted the NLC with negotiating and drafting the Third Lottery Licence with the successful bidder. We continue to provide ongoing legal advice to the NLC at our new firm on all issues arising from the Bid, including recently advising on the legal and operational considerations of the financial statements reporting to the Auditor General South Africa.
• Tebogo is currently the lead advisor assisting the NLC with preparation for the Fourth National Lottery Licence, including all aspects which relate to preparation of the RFP document, draft Licence Agreement, arranging for experts to assist with the evaluation and probity of the applications in response to the RFP document.
• Tebogo and Bonang acted as attorneys for the National Gambling Board (“NGB”) with the evaluation and adjudication processes in respect of responses to its tender for the second license operator of its National Central Electronic Monitoring System (“NCEMS”) for detecting and monitoring significant events associated with any Limited Pay-out Machines, worth ZAR 1 billion. We also assisted the NGB with negotiating and drafting the Service Level Agreement with the successful bidder. We subsequently mounted a successful defence in respect of litigation brought against the NGB and the Minister of Trade and Industry by the then incumbent and the unsuccessful bidder. We subsequently advised the NGB on the ring-fencing provisions of the agreement with the successful bidder.
• Tebogo advised the Council for Scientific and Industrial Research (“CSIR”) on its procurement of service providers for envisaged extensions to the South African National Research Network (“SANReN”) national backbone network, a high-speed network dedicated to research traffic, research networking and broadband infrastructures, intended to eventually connect up to 204 sites across the country with research networks hosting over 3 000 research and education organizations from all over the world, as well as the High Performance Computing (“HPC”) facility that enables cutting-edge research;
• Tebogo who was assisted by Bonang advised the Government Printing Works (“GPW”) on its procurement project aimed at replacing green bar-coded identity books with smartcard IDs. This included a review of the GPW’s procurement process to appoint manufacturers and/or supplies to supply it with blank contactless cards, delivered ready for personalisation by laser engraving technology (awarded at a price of €16 470 000, 00), and a format card personalisation and mailing solution (awarded at a price of ZAR 44 118 866, 00).
• We have provided advise to the Gauteng Gambling Board (GGB) on expenditure classified as irregular by the Provincial Treasury, including implications thereof to the accounting authority under the PFMA and Treasury Regulations and Practice Notes. The matter concerned the interpretation of Treasury Instructions Note 3 of 2016/2017, specifically against an opinion by Provincial Treasury that prior approval should have been sought in relation to expenditure incurred by the GGB concerning the procurement of various services. At the crux of the opinion was the legal status of Treasury Instruction Notes, and whether they supersede Treasury Regulations. We
assisted the GGB in ensuring that there were no adverse findings regarding the procurement processes by the Auditor General.
• In an allied instruction, we assisted the GGB with advice on establishment of a legal panel so as to avoid any findings of irregular expenditure arising from non-compliance with National Treasury Prescripts.
• We have also advised the GGB on a tender process of a turnkey construction project. Bonang advised the Bid Evaluation Committee (BEC) on the applicable legislation framework relating to evaluation of submitted bids. In this regard, she considered the findings of the probity auditor which were at variance with those of the BEC. Her
involvement assisted in clarifying the issues raised by BEC and the probity auditor, and the tender process was successfully finalised without any legal challenges.
• Bonang further assisted the Board of the GGB with a procurement process relating to a business automation technology solution for the GGB. The advice was sought following appeals lodged by bidders who were disqualified from proceeding to the next stage of the evaluation. We had regard to amongst others, the SCM administrative compliance report, the BEC reports, the probity auditor’s report, the BAC report, the RFP document for purposes of advising the GGB and formulating draft responses to the two appeals. We did so successfully, as the aggrieved bidders accepted the outcome of the bid process and did not litigate against the GGB.
• We have advised the GGB on the deviation from normal procurement processes for emergency services relating to sanitation solutions in the Gauteng Province in response to the COVID-19 pandemic.
• We were involved in an application brought by Afrisake for the review of a tender that was awarded to PEU and TUMS in respect of a smart meter project for the City of Tshwane. We acted on behalf of the City. We provided advice to the City on whether the procurement of PEU and TUMS’ services to implement the smart meter project was lawful. We therefore, reviewed the validity of the tender, then proceeded with the court application and obtained judgment regarding the merits of the tender in the City’s favour.
Preferential Procurement Regulations and Supply Chain Management Policy Reviews
• We assisted the LandBank with the review of its Equity Investments Policy (“the Policy”) and the Standard Process and Procedures (“SOP”). We were instructed to have regard to the provisions dealing with the Disposal of assets by the Bank and whether they must be subjected to a public procurement process as contemplated in terms of section 217 of the Constitution.
• Bonang and Ally are currently assisting the Department of Home Affairs with the review of its Supply Chain Management Policy in light of the recently promulgated 2022 Procurement Regulations issued in terms of the Preferential Procurement Policy Framework Act, 3 of 2000, as well as other Instruction and Practice Notes issued by National Treasury recently.
• Bonang recently provided an opinion to ARMSCOR on the implementation of its Transformation Policy, with a focus on specific provisions thereof and whether they would pass legal muster, in light of the promulgation of the 2022 Procurement Regulations issued in terms of the Preferential Procurement Policy Framework Act, 3 of 2000.
• We have been providing legal services to the Gauteng Department of Roads and Transport, including advising on the establishment of a panel for professional service providers for construction-related services. We also provide opinions on procurement related matters to ensure proper adherence to applicable procurement prescripts. We have also provided training to the Department’s supply chain management staff on procurement prescripts applicable to the Department and the latest developments in the law governing public procurement, in particular, the judgment of the Constitutional Court in Minister of Finance v Afribusiness and the implications thereof. We have recently considered the 2022 Preferential Procurement Regulations and the changes brought about by the said regulations.
• We are assisting Transnet with a review court application launched by an unsuccessful bidder relating to a decision taken by Transnet Pipelines (TPL), to award a tender for Specialised Tactical Security Services to secure the pipeline. The review is based on various grounds, which turn on the consideration of what amounts to an ‘acceptable tender’ in terms of the Preferential Procurement Policy Framework Act, 5 of 2000, and the Preferential Procurement Regulations as applicable at the time.
• We have assisted the Gauteng Gambling Board with a review and formulation of its supply chain management policy to ensure that it accords with National Treasury instruction notes, the Preferential Procurement Policy Framework Act, 5 of 2000, and its Regulations.