Home / Africa / South Africa / Public Procurement

Public Procurement

Governance of procurement in the public sector is vital to the efficient service delivery of any government. It must be held to a higher standard of conduct because it accounts for a significant portion of taxpayer money. 

Public procurement underpins the relationship between the private and public sectors and requires an acute appreciation and understanding of the broader legal and policy framework in public law, including public procurement, public finance management, constitutional law, administrative law, municipal law and regulatory law. 

Our integrated approach 

Our team is uniquely comprised of a combination of corporate lawyers, ex-regulators, qualified Company Secretaries and certified Commercial Forensic Practitioners and Fraud Examiners who have sat on the boards and been members of executive and audit committees of national and municipal entities.

We have the long-standing practical experience and technical knowledge to assist you in achieving a policy system that is fair, equitable, competitive, commercial and cost effective whilst upholding the constitutional principles of accountability and transparency. 

Our services include:

  • accessing information from public bodies
  • advising on administrative legislation including the Municipal Systems Act, the Local Government Act, Municipal Finance Management Act, the Municipal Budget and Reporting Regulations, the Municipal Service Delivery and PPP Guidelines, Municipal Supply Chain Regulations, the Supply Chain Management Guide for Municipal Accounting Officers and municipal supply chain policies
  • advising and training on the Public Finance Management Act, regulations 16 and 16A of the Treasury Regulations, the PPP Manual issued by National Treasury, the Constitution and procurement legislation including the Preferential Procurement Policy Framework Act, the Public Service Act and the Promotion of Administrative Justice Act.
  • advising on tender procedures and the applicable legislative framework
  • advising on company acquisitions and sales
  • advising on property acquisition, development and management
  • challenging irrational and unlawful administrative action
  • drafting and negotiating outsourcing and performance management agreements'
  • drafting and reviewing risk management and procurement policies
  • drafting opinions on constitutional, administrative and local and municipal government issues
  • lobbying/submissions to Parliament and all levels of government regarding legislative changes
  • providing employment advice
  • representing clients in proceedings before quasi-judicial bodies and parliamentary sub-committees
  • structuring public-private partnership transactions
  • undertaking judicial reviews and litigation
  • working with local authorities
CMS Public Procurement Group
World-class public procurement specialists The quality of public services is increasingly determined by world-class skills in public procurement. The procurement regime applies not only to the public sector but also to certain utilities.Such bodies’ day to day business as well as any real estate developments, joint ventures, restructuring, reorganisation or sale programme cannot function without a proper understanding of how procurement regulates their plans.Con­tract­ors bidding for work with these bodies also need to be able to navigate this increasingly complex set of rules.CMS can help you through these processes. Our specialist procurement lawyers take a thorough approach to legal detail and can also stand back and see the bigger, commercial picture, to deliver the best results. CMS Public Procurement Group The CMS Public Procurement Practice Group comprises over 175 public procurement law specialists practicing public procurement law in 38 jurisdictions being located in 53 cities in Europe, Africa, Asia and Latin America – committed to assist you. Familiar with both sides of tender procedures CMS lawyers represent both contracting authorities and private companies participating as bidders in tender procedures. This long-lasting experience enables us to cover every aspect in complex tender procedures. Clients on the awarding side benefit from having the tender procedure structured in a legally secure way, while bidders have a better chance of winning the contract. Broad Sector Experience CMS public procurement specialists have particular expertise in following industry sec­tors:In­fra­struc­ture & Pro­jectsCon­struc­tion in­dustry­Health­care and Life SciencesEnergy & Climate ChangeFinancial Ser­vices­Trans­port­Waste disposalIT and tele­com­mu­nic­a­tions Our services for contracting authorities Pre-procurement market engagementChoice of procedure and strategic procurement planningProject man­age­ment­Draft­ing of tender notices and tender doc­u­ment­s­Respond­ing to bidders’ questions and any complaintsTender eval­u­ation­Pre­par­ing and conducting bidder discussions and ne­go­ti­ationsDe­brief­ing unsuccessful biddersContract award Our services for bidders Engaging public sector bodiesDeveloping bidding strategies for contract op­por­tun­it­ies­Form­ing bidding con­sor­tiaAd­dress­ing incumbent contractor advantages and ensuring a level playing fieldDealing with unfavourable contract spe­cific­a­tionsSup­port in complex procurement procedures (e.g. PPP, IT)Drafting and optimising submission documentsSupport for notification duties, as well as content and timing of procedural com­plaint­sEn­sur­ing proper debrief information is received if unsuccessful Procurement Litigation Another key area is advice on procurement review cases and appeals (procurement litigation). We regularly represent both awarding bodies and bidders in procurement challenges before the tribunals and courts in all the countries in which we operate, as well as in front of the European Commission and the European Court of Justice.If you want to know whether a specific decision in a tender procedure under a national procurement act can be challenged and how many days are available for remedies, make use of our CMS Public Procurement Remedies Toolbox. This online tool guides you through the national procurement acts and calculates the time period available for remedies. Leading individuals CMS lawyers in many countries have shaped the public procurement legal development through numerous publications, lectures and representations as well as involvement in law-making activities. This in-depth know-how and experience is accessible in all CMS jurisdictions because the CMS team is used to interacting seamlessly across all the countries in which we operate. Construction and service concessions, public-private partnerships The high complexity of the procurement of concessions and PPP projects requires extensive planning as well as project teams made up of specialists from different areas of expertise (procurement, construction, contract law, public commercial law, corporate law, project finance and tax law) working together in the same project. Close cooperation with partners from various CMS offices ensures that our lawyers can always draw on international experience and develop tailor-made solutions, also for local projects. Compliance Compliance is of special importance in public tender procedures. CMS helpsto establish efficient compliance management systems and to assist, if necessary, in investigations and sanctioning procedures in order to mitigate negative consequences such as procurement bans by International Financial Institutions. Interface with State Aid and Privatisations CMS supports its clients also in transactions in which procurement law implications are easily overlooked. Real estate transactions or privatisations may not only contain pitfalls made of state aid law but it may also be necessary to consider complex procurement law aspects. ESG Public tenders not only enable transparent procurement competition to ensure best value for money, but also allow public purchasers to use public funds to achieve environmental and social goals, which often become industry standards that are then applied to contracts between private parties.
CMS Expert Guide to public procurement regulation
 July 2021Public procurement is a powerful tool for governments trying to create dynamic, innovative and sustainable markets, economies and societies. According to the European Commission, “every year, over 250,000 public authorities in the EU spend


Covering COVID-19: Level 3
"The secret of change is to focus all your energy not on fighting the old, but on building the new" ― Socrates The new norm of anticipating uncertainty in our business operations and personal lives...
Covering COVID-19: Level 4
"Success comes not from having certainty, but being able to live with un­cer­tainty." ― Jeffrey FryBusiness has been anything but dull, and in these unprecedented times, we have come to anticipate a level...