BRENTWOOD

2022-11-10

Public Procurement regulations change, excluding the BBBEE pre-condition.

As of 16 January 2023 there are a new set of rules for procurement by the State.

The Constitutional Court declared that the previous PPPFA rules were invalid and unconstitutional and an overstepping of authority when the pre-condition of a high level BBBEE Certificate was required to submit a tender.

BBBEE has not been excluded in tender applications

The big difference between the former regulations and these regulations is that preference points aren’t awarded for BBBEE levels like they were in the past. The points can, however, be awarded for specific goals in the Act which may include:

“contracting with persons, or categories of persons, historically disadvantaged by unfair discrimination on the basis of race, gender and disability”

Before the amendment, bidders’ BEE status carried a weight of 10% to 20% in the final tender evaluation process.  In the new regulations, all references to BBBEE criteria have been removed.

Now the organ of state must stipulate the applicable preference point system, and the specific goals in the invitation to submit the tender for which points may be awarded. Those goals can include the inclusion of historically disadvantaged people.

Among other things, in terms of the 2022 Regulations, an organ of the state must, in the tender documents, stipulate, the applicable preference point system as envisaged in the regulations, and the specific goals in the invitation to submit the tender for which points may be awarded. 

The specific requirements for a BBBEE Certificate at a certain BBBEE Level has been removed, but it does not mean there will not be additional requirements per tender to historically disadvantaged people.

Mark Kerruish - C: 061-434-0970,  E: mark@brentwood.co.za
Melanie Nortier - C: 083-650-2536,  E: melanie@brentwood.co.za