政府承包中免除公开招标程序的理由外文翻译资料

GROUNDS FOR DISPENSING WITH PUBLIC TENDER PROCEDURES IN GOVERNMENT CONTRACTING

1 Introduction

Procurement is generally described as the function of purchasing goods and services from an outside body.In South Africa, public sector procurement or government procurement is estimated to amount to approximately 14% of gross domestic product (GDP).In the United Kingdom, it is estimated that the total value of public procurement (excluding the procurement of public corporations) was pound;117 billion in 2002/3 and in the United States, the monetary value of public sector contracts given to the private sector is estimated to be about 15% of GDP. Government procurement is, therefore, of huge economic significance. Government procurement is, moreover, of major importance for the economic development of a country, particularly in respect of projects involving infrastructure and telecommunication. A government can use its procurement power to promote social and policy objectives by, for example, promoting the development of previously disadvantaged groups. The size and volume of government procurement does, however, give rise to considerable potential for corruption. Both contractors and public officials may resort to corrupt practices, and this may be for personal or political reasons. Whatever the underlying reasons, corruption undermines the attainment of value for money in government contracting, the fair treatment of contractors and the use of procurement as a policy tool.

The South African Constitution provides that when organs of state procure goods or services, they must comply with five principles: fairness, equity, transparency, competitiveness and cost-effectiveness. In short, this means that organs of state should make use of competition when procuring goods or services. They should shop around and attract the maximum number of contractors who will participate in such competition. The aim should be to ensure the attainment of value for money – public money should be spent in an effective and efficient manner. Those who participate in competitions should also be treated fairly and without bias. Thus, all contracting parties should have equal access to competition; some contractors should not be afforded more time for the preparation and submission of quotes or tenders than others; and the same information should be made available to all contracting parties. Government procurement procedures should further be transparent, meaning public or open. Thus, when organs of state procure goods or services, this should not be done behind closed doors. Procurement information should be generally available; there should be publication of general procurement rules and practices; government contracts should be advertised; contractors should be able to access information on government contract awards; and organs of state should disclose the criteria that will be applied in selecting a winning contractor.

Depending on the nature and value of a particular contract, the use of a public call for tenders can generally be regarded as the best way to ensure compliance with the principles in section 217(1) of the Constitution, that is, fairness, equity, transparency, competitiveness and cost-effectiveness. By nature, a public call for tenders is open; it assists in the prevention of fraud or favouritism; and ensures that the maximum number of contractors is approached to participate in government procurement procedures, thus affording an equal opportunity to all prospective contractors to contract with the government. An organ of state is also in a position to compare prices and quality and can choose to contract with whoever offers the best deal. Most legislation accordingly proceeds on the basis that procurement takes place by way of tendering. As a general rule, legislation prescribes that contracts with a high value (above R200 000) are subject to public tender procedures.

There may, however, be instances when the circumstances of a particular case make the use of a public call for tenders inappropriate, regardless of the high value of the contract. Provision is, therefore, made in legislation for exceptions to the prescribed use of tendering. Since tendering is generally the best method to employ to ensure compliance with the principles in section 217(1) of the Constitution, it is important for there to be sufficient guidance on the non-use of tender procedures. The aim of this article is to analyse the legislation providing for exceptions to the use of tendering and to make recommendations on how some of the legislative provisions should be interpreted in order to align them with the principles in section 217(1) of the Constitution.

First, the different ways in which legislation makes provision for the non-use of tendering will be enquired into. Guidance will then be provided on how certain legislative provisions should be interpreted to ensure compliance with section 217(1) of the Constitution. In doing so, reference will be made to international instruments dealing with government procurement and, specifically, the nonuse of tender procedures. Readers are warned not to expect extensive reference to applicable case law. The reason for this is that in those instances where organs of state fail to make use of public tender procedures, affected parties are seldom aware of this. Also, even where decisions not to use tender procedures are known to affected parties, they are generally unlikely to experience such an instant or direct sense of unfairness as with decisions made in the course of public tender procedures. Case law dealing with the nonuse of public tender procedures is accordingly scarce, especially in the South African context. As far as possible, however, use will be made of practical examples.

2 Exceptions as provided for in legislation

2.1 Overview of legislation

At nat

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外语文献翻译

GROUNDS FOR DISPENSING WITH PUBLIC TENDER PROCEDURES IN GOVERNMENT CONTRACTING

1 Introduction

Procurement is generally described as the function of purchasing goods and services from an outside body.In South Africa, public sector procurement or government procurement is estimated to amount to approximately 14% of gross domestic product (GDP).In the United Kingdom, it is estimated that the total value of public procurement (excluding the procurement of public corporations) was pound;117 billion in 2002/3 and in the United States, the monetary value of public sector contracts given to the private sector is estimated to be about 15% of GDP. Government procurement is, therefore, of huge economic significance. Government procurement is, moreover, of major importance for the economic development of a country, particularly in respect of projects involving infrastructure and telecommunication. A government can use its procurement power to promote social and policy objectives by, for example, promoting the development of previously disadvantaged groups. The size and volume of government procurement does, however, give rise to considerable potential for corruption. Both contractors and public officials may resort to corrupt practices, and this may be for personal or political reasons. Whatever the underlying reasons, corruption undermines the attainment of value for money in government contracting, the fair treatment of contractors and the use of procurement as a policy tool.

The South African Constitution provides that when organs of state procure goods or services, they must comply with five principles: fairness, equity, transparency, competitiveness and cost-effectiveness. In short, this means that organs of state should make use of competition when procuring goods or services. They should shop around and attract the maximum number of contractors who will participate in such competition. The aim should be to ensure the attainment of value for money – public money should be spent in an effective and efficient manner. Those who participate in competitions should also be treated fairly and without bias. Thus, all contracting parties should have equal access to competition; some contractors should not be afforded more time for the preparation and submission of quotes or tenders than others; and the same information should be made available to all contracting parties. Government procurement procedures should further be transparent, meaning public or open. Thus, when organs of state procure goods or services, this should not be done behind closed doors. Procurement information should be generally available; there should be publication of general procurement rules and practices; government contracts should be advertised; contractors should be able to access information on government contract awards; and organs of state should disclose the criteria that will be applied in selecting a winning contractor.

Depending on the nature and value of a particular contract, the use of a public call for tenders can generally be regarded as the best way to ensure compliance with the principles in section 217(1) of the Constitution, that is, fairness, equity, transparency, competitiveness and cost-effectiveness. By nature, a public call for tenders is open; it assists in the prevention of fraud or favouritism; and ensures that the maximum number of contractors is approached to participate in government procurement procedures, thus affording an equal opportunity to all prospective contractors to contract with the government. An organ of state is also in a position to compare prices and quality and can choose to contract with whoever offers the best deal. Most legislation accordingly proceeds on the basis that procurement takes place by way of tendering. As a general rule, legislation prescribes that contracts with a high value (above R200 000) are subject to public tender procedures.

There may, however, be instances when the circumstances of a particular case make the use of a public call for tenders inappropriate, regardless of the high value of the contract. Provision is, therefore, made in legislation for exceptions to the prescribed use of tendering. Since tendering is generally the best method to employ to ensure compliance with the principles in section 217(1) of the Constitution, it is important for there to be sufficient guidance on the non-use of tender procedures. The aim of this article is to analyse the legislation providing for exceptions to the use of tendering and to make recommendations on how some of the legislative provisions should be interpreted in order to align them with the principles in section 217(1) of the Constitution.

First, the different ways in which legislation makes provision for the non-use of tendering will be enquired into. Guidance will then be provided on how certain legislative provisions should be interpreted to ensure compliance with section 217(1) of the Constitution. In doing so, reference will be made to international instruments dealing with government procurement and, specifically, the nonuse of tender procedures. Readers are warned not to expect extensive reference to applicable case law. The reason for this is that in those instances where organs of state fail to make use of public tender procedures, affected parties are seldom aware of this. Also, even where decisions not to use tender procedures are known to affected parties, they are generally unlikely to experience such an instant or direct sense of unfairness as with decisions made in the course of public tender procedures. Case law dealing with the nonuse of public tender procedures is accordingly scarce, especially in the South African cont

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