Consultant for Legal Research and Analysis of Regulatory Framework Governing Publication of Procurement Data in South Africa

Consultant for Legal Research and Analysis of Regulatory Framework Governing Publication of Procurement Data in South Africa

23 Dec
|
Open Contracting Partnership
|
South Africa

23 Dec

Open Contracting Partnership

South Africa

Summary : The Open Contracting Partnership (OCP) and the Office of the Chief Procurement Officer, National Treasury South Africa are seeking a consultant to 1) undertake a legal analysis to understand the existing regulatory frameworks and demands that support procurement data transparency in South Africa, 2) identify the existing regulatory gaps 3) and propose - based on international best practice - ways to close those gaps.



This work will help to support and sustain the active procurement transparency investment of the National Treasury.



The research will be predominantly desktop-based, and will build on previous analyses,





but will require engagement with the technical team at National Treasury and external consultants tasked with modernising the procurement data systems.



The work will form part of the broader objective of the OCP-supported project to transform the existing eTender portal into a true transparency portal, publishing data from all stages of the procurement process in a standardised format.



Application deadline : 21st December 2021



Project duration : January - February 2022



Background



South Africa is currently working towards systemic reforms in its procurement processes and systems to address these challenges.



The National Treasury has made efforts to disclose its procurement information through the recently relaunched eTender portal , the existing central supplier database , and COVID procurement dashboard .



We have also seen renewed commitment to fiscal transparency through the 4th OGP National Action Plan which for the first time includes a commitment to implementing open contracting reforms, and the Draft Procurement Bill which promises a legal backing to the much needed reform.



However, much more remains to sustain these reforms and to improve the way South African procurement is done.



Through the support of the British High Commission in South Africa, OCP is supporting the National Treasury to modernise its existing procurement process and systems through implementing open contracting principles and data.



We are working with the ICT department in the Office of the Chief Procurement Officer (OCPO) and other government stakeholders to improve procurement data publication and standardization, increase systems interoperability, achieve transparency, and monitor procurement outcomes and effectively monitor procurement deviations, which pose a significant risk for accountability within procurement.



One of the key goals of the overarching project is to transform the existing eTender portal into a transparency portal, publishing all relevant data from all stages of the procurement process - planning, tender, award, contract and implementation - in compliance with the Open Contracting Data Standard (OCDS) and in accordance with the Protection of Personal Information Act (POPIA) and other regulatory demands.



In order for this to happen, it is necessary for the National Treasury to have access to all data from all procuring entities from all stages of the procurement process, and in a standardised format, and publish it to the public.



Summary of Consultancy



The regulatory framework governing public procurement in South Africa is complex and consists of various pieces of legislation, regulations and instruction notes, and circulars issued by the National Treasury.



Included within these legal instruments are various obligations on procuring entities - at all levels of government and state-owned entities - to publish various documents at different stages of the procurement process.



However, we do not currently have a clear understanding of what is legally allowed to be published, what is needed to be published but not legally allowed, or where there is no legal obligation to provide data, and where gaps, if any, exist.



We are seeking a consultant to achieve this through the following objectives :



- Undertake research to analyze the existing legal and regulatory frameworks and demands that support or deter procurement data transparency in South Africa

- Clearly identify the existing regulatory gaps, analyze global best practices, and recommend new policies or regulations to best strengthen data publication and use in South Africa



Expected activities and deliverables



Legal framework analysis research and report : Through desk research, and consultation with the National Treasury policy and technical team, identify the legal obligations on procuring entities and organs of state to publish procurement data from all stages of the process set out in existing legislation, regulations, National Treasury instruction notes and circulars, and any other relevant legal instruments.



The consultant is encouraged to utilize OCP's legislative guide and legal research guide and spreadsheet to



- Analyze global best practices and international standards and compare those to the existing South African legislative environment.

- Refer to previous legislative analyses conducted for the National Treasury and update and amend where necessary.

- The deliverable is a comprehensive report which :

- Outlines all the reporting obligations of all forms of procuring entities under South Africa's regulatory framework, this should be mapped to what data must be published on a transparency portal; including

- Clearly delineates the entity to which the information must be reported;

- Identifies the gaps in the legal framework in respect of the information that needs to be published on a transparency portal, mapped against OCP's matrix of the procurement process

- Provides a summary of how the Protection of Personal Information Act (POPIA) interacts with the procurement reporting obligations, including a delineation of what information can be published under POPIA and what publication is prohibited by POPIA

- Offers a list of legal instruments considered.

- Others as recommended by the consultant

- Presentation of findings and recommendations : After the report has been finalized, we expect a presentation to the OCPO team leading the procurement reform management work and the consulted stakeholders to report back on the findings and the changes to be implemented based on global best practices.

- The deliverables for this presentation are :

- A workshop with OCP and OCPO team to present the findings of the research;

- An outline of the global best practices considered, and those applied in the research

- A summary of the proposed changes

- Support implementation of findings : Provide support to the teams (policy and technical) within the National Treasury to align the legal analysis findings with the data or policy teams as they work towards transparency through the procurement modernization project.

- The deliverable for this support is :

- Two meetings with the technical teams during the period of the consultancy to discuss the legal analysis and identify areas of alignment.

- A summary of the report's proposed changes and the impact this would have on the development of the transparency portal.

- Regular check-ins : Throughout our engagement, we anticipate regular check-in meetings between the consultant, core team, and OCP to ensure alignment.



Timeline



The research should take place from December 2021 - February 2022, with the final report presented to OCP and National Treasury by 28 February 2022.



Qualifications



This research requires a strong background in law - particularly procurement law - and a technical understanding of data collection and publication would be highly advantageous.



The consultant must be in the position to engage with members of the technical teams and be able to align the legal research with the technical realities and constraints that the National Treasury may identify.



- Required

- Minimum of a bachelor's degree in law (or equivalent).

- At least five (5) years of experience in legal research and analysis with a focus on public law.

- Strong track record of conducting legislative analysis, including identification of lacunae in legal frameworks.

- Experience in engaging with public officials

- A clear understanding of legal systems, with an understanding of technical systems a benefit.

- Ability to generate and deliver clear and persuasive oral and written communications, being technically sound without sounding technical.

- Not required but relevant

- Additional qualification in information technology, computer science, ideally with a focus on the technology space is a plus

- A proven record of success in working or collaborating with government agencies at all levels, and with the private sector and civil society in South Africa.

- Awareness of open data and public procurement issues, and experience in working with partners on implementing data projects that are centered around user needs and the use of data.

- Ability to travel if needed within South Africa.



Terms of the Consultancy



- You will be required to complete this project by 28 February 2022.

- You will report directly to OCP as regards all project delivery, but with a secondary reporting obligation to the Supply Chain Management ICT team within National Treasury.

- You will report operationally and administratively to the Senior Manager for Africa at OCP.

- You will ensure regular project check-ins and reviews against project timelines with OCP and OCPO.

- The maximum value of the consultancy is $8,000 USD.

- Payment will be made twice against deliverable driven invoices, including satisfactory progress report of deliverables performed their corresponding dates and times.



Application process



A submission must consist of :



- A Curriculum Vitae (CV)

- A proposal of at most two (2) pages outlining your intended plan for delivery

- Itemized budget with daily rates

- 2 examples of similar projects

- 2 writing samples



Applications will be reviewed on a rolling basis, with a final submission deadline of 21st December 2021.



Should you have any questions please contact Nkechi Coker, Senior Manager Africa at ncoker at opencontracting.org.

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