The prerogative that government must be accountable is enshrined in the Constitution (see section 34 in Chapter 2: Bill of Rights). However, a disturbing new trend when it comes to advertising for tenders has been observed that is clearly being used by state entities to reduce accountability. By MARK TOWNSEND.
It is becoming increasingly difficult to find tender information in South Africa. Working in the industry as a tender information service provider, we trawl through over 600 sources on a daily basis to find tenders in South Africa.
Previously, it was compulsory for state entities to advertise their calls for tenders in the local newspapers. In fact, they had to advertise their tenders in two newspapers – often in English and Afrikaans. Traditionally, most tenders were published on Fridays. So bidders could buy the Friday newspapers and be confident that they were finding most of the tenders. A couple of years ago we started noticing tender advertisements which provided very little information, but simply referred the reader to a website. For example, the Hessequa Municipality at Riversdale in Western Cape started placing their tender ads in Die Burger and Cape Times with only the tender title, referring the reader to the Hessequa website for more information. But on the Hessequa website we discovered that the tender information was not there. When a query was directed to the contact person at the municipality pointing out that the full information was not provided, the official would simply tell you to look at the site tomorrow. Despite complaints about this, that municipality continues to publish its tenders in this way.
One major advance the National Treasury has introduced over the past year has been the creation of the Etenders website, which claims to publish all the tenders advertised by the South African government entities. The Etenders site is free and open for everyone to access, and has new tenders added every day. Although it is a good source, the Etenders website is such a massive database of tenders that it is impossible to see when a new tender appears, which makes it difficult for bidders to be sure they have seen all new opportunities. The tenders are arranged in a haphazard way, which makes searching highly problematic. The misspellings, grammatical errors and confused or truncated tender titles that proliferate on the Etenders website, although humorous at times, have a very serious impact on bidders who often miss a tender completely due to these errors. Missing out on a bid could make or break a company that relies on tenders to stay in operation.
Recently we have noticed a new phenomenon: advertisements in the newspapers announcing the intention to stop advertising tenders in the papers completely – ie henceforth they will only advertise their tenders on their websites. For example, in the Sunday Times on 3 September 2017 the SA National Blood Service (an NGO) advertised that it would no longer be advertising its tenders in the papers, and anyone wishing to find out about their tenders would need to visit the SANBS website for this information. Government entities are also doing this. The difficulty with this development is that anyone wanting to know about new tenders has no way of knowing when the tenders has been published. Timing is key when tendering and there are laws about how many days there should be between advertising a tender and the closing date, to ensure that bidders have a fair chance of compiling their best possible bid. By blurring the lines about when a tender is advertised, accountability of the body putting out the tender is compromised.
Although many public and private institutions now have user-friendly, effective websites, there are many appalling websites that are impossible to navigate. Sometimes we are blamed that we have missed a particular tender, usually from someone who is very angry. When we investigate why our system did not find the tender we invariably find that the original source – the website – is dysfunctional. The question is: Who can the bidder complain to when he or she misses a tender published in this way? The Public Protector, Treasury and other agencies dealing with such fraud will not look into it as they are already overloaded.
Ultimately, it seems likely that only a successful legal challenge by an aggrieved bidder will show up the government agencies to be acting in an unaccountable way. This means that only a big company with the financial resources to take up the matter in the courts will be able to mount such a challenge. Small businesses will simply be steamrollered by the government officials, who want to hide their inefficiency and unaccountability.
Furthermore, the courts are largely unsympathetic to such challenges, and will generally not overturn a tender award unless the challenge arrives within a few days of the award being made. The justification provided by the courts for refusing to halt and redo the tender is that the cost of halting the tender and rerunning the process is too great, and will amount to wasted state expenditure. What it comes down to is that, instead of improving access to information about tenders, the government’s new tender publishing system is reducing access to tender information, particularly for small professionals and entrepreneurs. Internet technology is developing faster than the laws that govern it, and it is definitely necessary to move with the times and include websites as sources of quote and tender information. But it is also urgent that South Africa’s legislation be updated to ensure that government departments, municipalities and state entities are obliged to publish their tenders more widely. DM
Mark Townsend has been involved in the tender information provider business since 2001
File photo: Nic Bothma/(EPA)
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