Title: 'Flaws' in public procurement not synonymous with 'irregularities': a guide to determining irregularities that are sufficient to invalidate a contract

Authors: Moses Retselisitsoe Phooko

Addresses: Department of Jurisprudence, College of Law, University of South Africa, P.O. Box 392, Brooklyn House, Unisa, 0003, South Africa

Abstract: Public procurement process has to inter alia comply with the principles of fairness and transparency. If it does not comply with one of the principles mentioned above, an aggrieved person may challenge the award of that tender on the grounds that there was an act of irregularity in the award of the tender. It is in this context that the Supreme Court of Appeal (the SCA) decision in Allpay Consolidated Investment Holdings (Pty) Ltd and others v Chief Executive Officer of the South African Social Security Agency and others 2013 (4) SA 557 (SCA) is evaluated. The paper argues that non-compliance with a tender regulation, regardless of the degree of non-compliance, renders the award of the tender invalid. Therefore, the SCA erred in holding that a "procurement process should not be invalidated for minor, inconsequential flaws".

Keywords: South Africa; public procurement contracts; tender regulations; irregularities; contract invalidation.

DOI: 10.1504/IJPLAP.2014.065210

International Journal of Public Law and Policy, 2014 Vol.4 No.4, pp.352 - 364

Received: 08 May 2021
Accepted: 12 May 2021

Published online: 16 Oct 2014 *

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