Treasury must withdraw unlawful tender instructions; government tenders may proceed without BEE pre-requirements
28 February 2022
The National Treasury has issued unlawful instructions to organs of state in what amounts to a deliberate attempt to sidestep the Constitutional Court's recent public procurement judgment. These instructions also threaten to cause virtually all government tenders countrywide to grind to a halt without reason and to expose other tenders that are awarded in terms of unlawful regulations, to judicial review.
Sakeliga wrote this morning to the Minister of Finance and National Treasury, demanding that the unlawful instructions are urgently withdrawn.
The instructions, which were forwarded to all organs of state by circular on 25 February, follows in the wake of Sakeliga’s Constitutional Court victory on 16 February. In this case, Sakeliga succeeded in having declared ultra vires and unlawful parts of the 2017 procurement regulations of the Minister of Finance, in terms which government tenders had been subject to BEE pre-disqualification requirements. This means that organs of state henceforth cannot continue relying on the 2017 regulations as basis for pre-disqualification of tenders.
However, apparently not happy with this judgment, the Director-General (DG) is now engaging in further unlawful actions and causing potentially unlawful actions to be performed by organs of state.