Tender Defaulters - Isn’t it time to name and shame? (cont.)
In 2004, our National Treasury established a register to name tender defaulters. This register is open to the public and is available on National Treasury’s website. Notwithstanding widespread procurement related corruption in South Africa since 2004, the register to date does not contain a single name.
The Prevention and Combating of Corrupt Activities Act, 12 of 2004 which is also known as the Corruption Act makes provision for the establishment of the Register for Tender Defaulters.
In terms of the Corruption Act, the particulars of persons or enterprises who are convicted by a court of an offence involving corruption relating to contracts or to tenders may be endorsed on the Register. The particulars of Directors, Managers or other persons in control over the enterprise may also be reflected, as well as the particulars of other enterprises controlled by persons convicted. The details of the conviction and sentence are also listed in the Register.
Where a name of a person or enterprise is reflected on the register, other restrictions may be imposed including:
- The termination of any agreement between National Treasury and that person or enterprise.
- National Treasury may be precluded from considering any offer in respect of any agreement from that person or enterprise for a period determined by them.
- During the period set by National Treasury, no Government Department nor the purchasing authority nor National Treasury can consider any offer tendered by that person or enterprise or could disqualify that person or enterprise from making any offer or obtaining any agreement relating to the procurement of a specific supply or service.
The purpose of the Register is in effect to alert the public sector to the identities of persons or enterprises convicted of corrupt activities in relation to contracts or tendering and in certain circumstances to prevent or deter these persons or entities from supplying their goods or services to government for a period of time. The information on the Register is also available to the public at large and thus serves as a warning to private business as well.
The legislation is well thought through and makes provision for a much needed procurement control tool for both government and the private sector – why then is the register after nearly 5 years still standing empty and whose responsibility is this? It is the Courts that must issue an order for the endorsement of the register when convicting and sentencing persons or enterprises for corruption offences relating to contracts or tenders. It is up to the public as complainants in these types of corruption matters to take a more active role and ensure that the State as Prosecutor, requests the Courts to make such orders and by so doing allow our legislation to work for us.
Mandy Munro-Smith
Partner Bowman Gilfillan Inc