Adjudication of bids within the public sector supply chain management process

Abstract

Section 217 of the Constitution1 states that, when organ of state within the national, provincial and local sphere contracts for goods or services, must do so in accordance with a system which is fair, equitable, transparent, competitive and cost effective. A number of legislations were enacted to deal with supply chain management processes within the public sector which legislations and regulations are often contradictory and confusing with no clear legal status. Organs of state are required to issue out an invitation to tender which is not open for acceptance by the highest bidder, but an invitation to potential bidders to make an offer that will be considered after the closing date for the particular tender. For the offer and acceptance to be valid and enforceable must comply with certain requirements. Once the offer is accepted, a contract which reflects the consensus reached between the parties, is formed. Once entered into, contracts are there not to be breached but entered into with the intention of having some benefit. However when parties breach the contract or when same is terminated and loss is suffered, parties may take a better look at the terms and conditions of their agreement. It is at that time that the parties may say their intention prior to signing the agreement is not correctly represented in the agreement and as such parties wish to state that the contract does not truly reflect their intention.2 It is at this point that process of interpretation becomes critical. It is the duty of the drafter to ensure that such invitation to do business is carefully drafted and has fully captured all the elements of the envisaged contract and excluded all elements of ambiguity which might create problems during the interpretation stage. In this document I intend to indicate the legislative framework governing supply chain management processes within the public sector and challenges encountered in the implementation of such legislations, the impact created by the lack of knowledge and skills by the persons entrusted with the duty to implement the legislations and non-compliance with policies and regulations relating to process. It is argued in this document that our law should be developed to fully recognize a bidding process as another form of contract creating rights and obligations and be interpreted in the same was as any other contract to eliminate most of the challenges in dealing with a bidding process. The further challenges created by the implementation of the myriad of legislations and policies regulating the public sector supply chain process be minimized by the enactment of a comprehensive integrated ‘one stop’ public procurement code.