The legal regulation of construction procurement as a relational construct in South Africa

[摘要] ENGLISH ABSTRACT : Public procurement is generally considered to be the acquisition of goods or services bythe government. It contributes a large deal to the country's economy and involves theexpenditure of public funds. Due to its importance, public procurement is regulated bysection 217 of the Constitution which provides that organs of state when contracting forgoods or services must do so in accordance with a system which is fair, equitable,transparent, competitive and cost-effective.Public procurement in the construction industry forms part of the regulation of generalpublic procurement under section 217. Construction procurement is also regulated bysector specific legal rules and constitutes a large part of the country's expenditure budget.Public procurement is regulated by a hybrid legal system. This means that both public andprivate law apply to the procurement process. Based on the public nature of publicprocurement, private law is ill suited to the nuances of the complex, multi-partyprocurement process. Moreover, the doctrinal nature of private law is inadequate inaddressing the needs of the various role-players involved in public procurement. This isexacerbated by the even more complex and highly specialised field of constructionprocurement which often lasts for long periods of time.The question this dissertation aims to address is whether an alternative approach to publicprocurement law may assist in the manner in which it is regulated given the variousinadequacies experienced. More specifically, the aim is to determine whether a relationalperspective or understanding of construction procurement law in South Africa assists informulating regulation in this area of law. Chapter one sets out the research question to be answered, the hypothesis on which thedissertation is based and the methodology employed. Chapter two establishes thedefinition of construction procurement, its legal regulation, and recommends the separatecategorisation of construction works and thus construction procurement in section 217 ofthe Constitution. Chapter three addresses the nature of the legal rules which regulateconstruction procurement and the manner in which these rules should be interpreted.Following this, chapter four investigates relational contract theory created and developedin the American private law, its nature and whether it can be applied in South Africanpublic procurement law. This chapter recommends a relational procurement law toaddress the current inadequacies in public procurement law. Public-private partnershipsform a large percentage of the country's infrastructure budget and are increasingly used asa means to deliver infrastructure in South Africa. As such, chapter five establishes whetherrelational procurement law can be implemented in the public-private partnership legalregime. In addition to the acquisition of goods or services, public procurement can be usedfor the promotion of collateral objectives such as socio-economic goals in the form ofpreferring certain groups of individuals when government contracts are awarded. This hasbeen especially important in the South African context. Therefore, the working of relationalprocurement law within the preferential procurement regime is important. Chapter six thusdiscusses a relational preferential procurement law. The concluding chapter collectivelyrefers to that discussed in preceding chapters including the conclusions reached andattempts to answer the research question as to whether a relational understanding ofconstruction procurement law in South Africa assists the regulation of this area of law.

[发布机构] Stellenbosch University