COMMENTARY:

SHARE   |   Monday, 14 September 2015   |   By Staff Writer


Whither government blacklisting?
Lately the  Minister for Infrastructure has been repeating threats by government to blacklist contractors that either deliver poor quality projects riddled with defects or fail to deliver projects on time leading to millions of pula lost in cost overruns. 
We trust that the decision to blacklist failing contractors may was made in good faith. We also believe that such a tough stance on poor perfoming contractors could send a loud and clear message to all and sundry to adhere to set timelines and presrcibed standards.
While we agree with the decision to start taking action against contractors who fail to deliver projects on time and/or those that produce susbstandard work, we would like to urge government to tread carefully. First government should promulgate legislation that provides for such action and put in plays guidelines for the process that will culminate in such blacklisting. Such blackilisting should be a product after due process has been exhausted. We hope such blacklisting will not be based on directives from excitable government functionaries, which will in the end lead to government further losing millions in litigation against protesting victims. The highest courts in the land have repeatedly pointed out that such directives from government functionaries, including presidential directives, while they could be used to drive implementation they are not the law themselves. Only Parliament is vested with the powers to make laws and the rule of law is ever- paramount. 
Already questions are being raised about which provisions of the law is government going to use to blacklist wrongdoers as it would appear we do not currently have one that explicitly spells that out. It is interesting to note that even as government officals repeatedly make the threat they do not provide us with enough information on the legality of such a decision or at the least the process to be followed that will end up with one being blacklisted. Neither are we told if the affected party will be involved in the process that will culminated in their termination nor are we told how such decision will be communicated to them.
While some argue that government has the discretion to choose who they want to do business with, such is not convincing because government is not a private citizens. We are aware that section 124 of the Public Procurement and Asset Disposal Act provides for the suspension of a contractor who does not comply with the code of conduct or the contract concluded with a procuring entity. The provision reads thus: "A contractor who does not comply either with the code of conduct or the contract concluded with a procuring entity may be suspended or delisted by the Board from the Register of Contractors". Also we know of a Code of Conduct set up by PPADB and this in terms of section 123, for all contractors registered with the Board. The suspension can either be on the basis of a contractor's failure to fulfill his obligations under the contract, or a breach of the code. This provisions only allows for suspension. This suspension must obvioulsy be preceded by a hearing which would culminate on the proper finding that the contractor was in breach. It does not entitle any public authority to willy nilly and secretly blacklist contractors. We hope that the contractor in question will be given an ample opportunity to present his case before a properly constituted board/ committee manned by professionals in the relevant fields including the legal fraternity.  The authority can only come to the conclusion of a breach of the code after hearing the affected contractor. The reasons for the suspension would then be communicated with the decision to enable the contractor to take it to the High Court on review if he so wishes.
Lest we be misunderstood, we support contractors who fail the nation.



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