A comparative study of the effectiveness of bidder remedies in South Africa and Nigeria

[摘要] ENGLISH ABSTRACT : The Guide to Enactment identified that a bidder remedies system helps to make procurementlaw to 'an important degree self-policing and self-enforcing. This is because it provides anavenue to litigate for bidders that have interest in monitoring procuring entities' compliancewith the procurement rules. In an attempt to protect their rights or to remedy the injury causedby breach of procurement rules, bidders act as 'private attorney generals to enforcecompliance. Bidder remedies regime is an integral part of the public procurement systems ofmany countries in Africa. Nigeria and South Africa are examples of African countries that havesuch regimes. Bidder remedies have assumed an academic and practical importance due to theactual and perceived role that it plays in the proper functioning of a public procurement system.Although research interest in bidder remedies has been on the increase globally, only anegligible portion of the research focuses on Africa. The information gap that exists due to theavailability of very little academic information on bidder remedies in Africa remains to befilled, by detailed research. This study fills this information gap by undertaking an in-depthcomparative analysis of the bidder remedies systems of Nigeria and South Africa, and assessingtheir effectiveness using clearly identified yardsticks/elements.The key research question which this study addressed towards achieving the above,was: 'Whether the bidder remedies regimes of South Africa and Nigeria are effective for theenforcement of public procurement rules?This study was conducted by way of doctrinal legal analysis. The study adopted acomparative approach in analysing the bidder remedies systems of South Africa and Nigeria,with a view to assessing their respective effectiveness in enforcing public procurement law.Analytical references were made to the bidder remedies regimes provided under internationalregulatory regimes, such as the UNCITRAL Model Law on Public Procurement. The primarymaterials which this study relied on are relevant legislation and case laws from bothjurisdictions. Similarities as well as striking differences exist between the South African andNigerian bidder remedies regimes, which made the systems suitable for a comparative study.The study established that the bidder remedies systems of both countries are reasonablyeffective, although this is undermined by certain legal and structural factors. The key findingis that the design of bidder remedies systems affects their effectiveness. Thus, based on thisand the lessons obtained from studying the two systems, this work towards the end presenteda blueprint for any country wishing to design or redesign its remedies systems.

[发布机构] Stellenbosch University