The ten commandments of good tender practice
In layman's terms, these are the features of a constitutionally compliant and legally acceptable tender process:1. An objective and unbiased approach in which an equitably based and fair decision is made on the bids by those competing to win the tender is universally needed in the adjudication of all tenders.
2. Professionalism and a high standard of ethics must be maintained throughout the tender process by the public servants tasked with formulating invitations to tender, processing tenders and their adjudication.
3. The efficient, economical and effective use of public resources and human resources involved in the tender process must be promoted.
4. Openness, accountability and responsiveness to people's needs must permeate the tender process.
5. The public must have access to information regarding tenders in a manner which is timely and accessible. The information must be accurate. This is part of transparency. Proper advertising of tenders, briefings on their requirements where necessary and a level playing field for all prospective tenderers are also required if the process is to be transparent.
6. Any hint of cronyism, nepotism, corruption, bias, and favouritism should nullify the tender process summarily.
7. If the lowest tender is not accepted, sound and sufficient reasons for rejecting it and accepting a higher tender should be made public at the time of the tender award.
8. Corruption, collusion and any other forms of criminality should invalidate any tender process infected with these features and a swift, sure and fair means of addressing irregularities ought to be available through the Courts to those prejudiced by any tender process irregularities, this includes not only unsuccessful tenderers but also the public whose funds are used to pay successful tenderers and/or their representatives (opposition political parties).
9. Politicians should have no role whatsoever to play in the process of fairly and objectively adjudicating tenders. Nor should they submit tenders to government because of the risk of abuses and the presence of conflicts of interest which render tenders voidable in law. Deployment of political "cadres" in the public administration is illegal and unconstitutional, the High Court rulings to this effect should, in accordance with the rule of law and section 165(5) of the Constitution, be respected, not flouted as they are at present.
10. Good human resource management and career development practices must be promoted for public servants involved in tender processes and in particular they should be precluded from entering any part of the private sector, either directly or indirectly, involved in tendering after they leave the public service for whatever reason.
These are Ifaisa's ten commandments of good tender practice. They are all violated routinely in the essentially corrupt tender processes SA is exposed to by its current public administration. Section 195(1) of the Constitution either expressly or by implication prescribes all of the main principles outlined above. Its peremptory provisions are largely ignored in the new SA, to the detriment of the poor and the taxpaying public. Because the Constitution is the supreme law of the land, all specific laws, regulations, rules and measures regulating tender processes have to comply with the values and principles of section 195(1). If they don't they are invalid. There is a need to develop the political will to get back to these constitutional basics. Ifaisa is prepared to assist in creating the necessary awareness that will facilitate this.
Paul Hoffman S.C.
25th February, 2010
