by GREGORY SOLIK and FATIMA HASSAN

We want a procurement system that is fair, equitable, open, competitive and cost effective.

LAST year, the Western Cape government and the Democratic Alliance were involved in an advertising-tender scandal that resulted in complaints to the public protector. Among the complainants were five independent civil society organisations, a fact largely ignored by the media in its coverage of the matter.

Civil society first raised the alarm about the fact that two special advisers to the Western Cape premier were involved not only in drafting the specifications of the tender but were also approached by the acting director-general to participate in the bid committee process.

Civil society wanted the public protector to establish whether political advisers to premiers, ministers and the president are by law entitled to participate in a supply chain management committee, and whether they are entitled to draft the specifications of tenders, irrespective of which political party they belong to.

There are two reasons why we sought a finding in this regard. First, political advisers are an extension of their political principals — their political influence could be corrupt or have the potential to be corrupt. Second, even if a political principal and his advisers are not corrupt, a perception is created that there is political interference and influence in the final award of a tender. Thus, it is best practice that political advisers and principals stay away from procurement and administration.

A political adviser is there at the discretion of his political boss and in the event that the boss is fired, resigns or is recalled, his job ends. The same is not true of a public servant, who serves a bureaucratic function. Our main concern at the time, however, was the implications for the African National Congress if this practice was not censured.

When the public protector released her final report on the advertising tender, one of her four main findings was that the appointment of two special advisers to the premier to the bid e valuation committee was improper and not unlawful as contended in her provisional report. The DA responded by spinning a story that the investigation was “a storm in a teacup stirred up by (its) political opponents” and that improper is okay as long as it’s not “unlawful”. But this is simply not true.

So what defines lawfulness and what makes conduct improper? To this end, section 217 of the constitution is instructive: there must be a “system” that is fair, equitable, transparent, competitive and cost-effective and procurement must be in accordance with that system. But what is the “system”?

In effect, the public protector found that certain circulars and guides issued by the National Treasury, which provide guidance on how accounting officers may hire advisers to assist in the execution of supply chain management functions, did not form part of the legal “system” because they cannot with any certainty be considered as regulations and instructions in terms of the Public Finance Management Act. The public protector explained that, “although there is some merit in arguing that the appointment of special advise rs of the p remier as members of the (committee) was unlawful … it cannot be contended with certitude that noncompliance with (circulars and guides) constitutes unlawful conduct”.

And this was the reason for her about-turn. The line between what is lawful and what is improper is not clear and this requires clarification.

To that end, the public protector has requested the minister of finance to amend the Treasury regulations to regulate the composition of bid committees in such a way as to avoid any uncertainty with regard to the lawfulness and propriety of the appointment of their members, and to ensure that political appointments are not part of this process. The final report also recommends that the director-general of the Treasury take urgent steps to ensure that the legal status of circulars, practice notes and other instructions are clearly determined and defined.

What is crucial for the purposes of this investigation is that this kind of political interference does not happen again. Or, if it does, it happens within a clear and identifiable system. We want a procurement system that is fair, equitable, open, competitive and cost effective.