Significant Changes in Public Procurement Law

One of the major stricter rules applies to who may bid for a public contract in terms of the ownership structure. Firstly, contractors who are legal entities must present a list of members or participants (see the supplemented provisions of Section 53(1)(k) of the Public Procurement Act). The same requirement applies to public limited companies with registered shares. Pursuant to the supplemented provisions of Section 53(1)(m), suppliers who are public limited companies shall be deemed to have complied with the basic qualification criteria only if they have registered shares and have presented an up-to-date list of shareholders.

Other changes include:

• mandatory reading of the bidding price upon the opening of the envelopes (Section 71(9))
• disclosure of other information – such as the newly required protocol on the assessment of the tenderer’s qualification, including the right to copies (Section 59(5-7))
• the right of all tenderers to check the ballot device if the contracting authority has used it in the contracting procedure (Section 61(4), Section 66(4))
• submission of the qualification documentation only in copies (Section 57(1)
• new rules for the security in Section 67; for example, security may be required even in the case of a simplified below-the-limit procedure, there are also rules for the release of the security
• the current ban on concurrent participation of a single tenderer as a contractor and, at the same time, as a subcontractor of a different contractor save where it would be documenting its qualification through the subcontractor (Section 69(2)
• the contracting authorities will be obliged to express the business benefit of the project through disclosing the value-for-money indicator (Section 78(4))

However, the final version of the amendment does not include the duty of the contracting authorities to disclose and make available all information regarding the public contract on the Internet due to the Senate’s proposed change on the grounds of the provision lacking legislative accuracy.

The amendment takes force and effect on 15 September 2010.