• By Maria Jonga

The Tender Board Act 16 of 1996 was repealed following reforms aimed at strengthening institutional capacity as well as mitigate corruption risks.  Its replacement, the Public Procurement Act 15 of 2015 largely anchored on the UNCITRAL model law, established the Procurement Policy Unit, Central Procurement Board, and the Review Panel. 

Using Public Procurement as a socio-economic empowerment tool carries great potential in accelerating empowerment efforts.  Section 2 (b) of the Act, underscores the importance of public procurement as a Government empowerment and industrialisation policy enabler.

In recent times, the nation’s leadership bemoaned shortcomings in the legislation calling for urgent reforms.  The concerns amongst others relate to failure to achieve tangible results in the area of empowerment.  Against the aforesaid, the need exists to unpack and contrast Sections 2 and 50 of the Act and reflect whether legislative amendments are required to solidify empowerment efforts.

Section 2 (b) (iv) (dd) of the Act reads;

“Preferential treatment in the allocation of procurement contracts to Namibian Natural persons or categories of persons, including persons who have been economically or educationally disadvantaged by past racial discriminatory laws or practices”. This section is supported by the Code of Good Practices issued by the Policy Unit giving expression to the provisions of Sections 71 and 72 of the Act.  Amidst these efforts, reality on ground is suggestive of a missing piece in the puzzle.

Proper alignment of Sections 50 and 2 of the Act is required to give full expression to empowerment efforts.  In current form, Section 50 presents limitations to the above-mentioned groups, with no formally registered businesses. The requirements entail possession of a valid certificate of good standing with the receiver of Revenue, Social Security Good standing or letter, a valid Affirmative Action compliance Certificate or an exemption, proof from the Employment Equity Commissioner that the bidder is not a relevant employer.

The prevailing paradox in procurement legislation relates to advocacy for inclusivity being hampered by the formal requirements of Section 50, which largely remain unattainable by the grassroots in desperate need for empowerment. Meaningful empowerment requires a fit for purpose legislation speaking to the unique traits of the target group.

Complimentary provision to Section 50 as proposed below may provide an alternative qualifying criterion.  The groups envisioned in Section 2 of the Act, may not necessarily own registered businesses, due to challenges encountered with registering with relevant authorities, in addition to financial constraints. Further hurdles experienced include lack of business opportunities, given entry barriers for start-ups who are yet to proof themselves.

Benchmarking against Tanzania, one of the leading countries in the procurement evolution is vital. Section 130 of the Tanzania Public Procurement Act 10 of 2023 provides for the development of Guidelines for the participation of special groups in public procurement. 

The groups are defined as; 
“A group of people with common interest to participate in public procurement as a group of women, youth, elderly, persons with disability, excluding those who are mentally challenged”. The guidelines provide for the registration of special groups with Public Entities named Special Group Supporting Entity (SGSE) which includes Ministries, Agencies, Government Organization, Local Government Authorities and Departments responsible for the development and Empowerment of women, youth, elderly or persons with disability.  

The SGSE are required to submit the registered groups to the Tanzanian Public Procurement Regulatory Authority.   Namibian Offices/Ministries and Agencies (O/M/A/s) with the same mandates could consider similar approach.  Proposed adjustment to the Namibian legislation includes extending the current 30% set aside provision to be applicable to all competitive bidding methods, while prioritising awards to qualifying special groups where possible.

The proposed intervention may yield significant results when complimented by supplier development, which is defined as an instance where the buyer (Government) undertakes to improve a supplier’s performance and or compatibilities to meet the buyer’s needs. To this end, the need to fully capacitate both the PPU and the CPBN to carry out targeted training interventions cannot be overemphasised.

Supplier development aids supplier growth, enabling them to graduate into becoming compliant with Section 50 demands, without extreme difficulties experienced by start-ups, with no capital or experience.

This will lead to local enterprise development boosting economic activity, ultimately killing two birds with one stone.  The informal market traders, students from Vocational Training centres etcetera, represent a significant number of the untapped potential bidders, sidelined by the exclusionary provisions of legislation.

The proposal may inadvertently reduce both unemployment and crime rates, given the symbiotic relationship. As the saying goes, necessity is the mother of innovation and Namibia is at crossroads, thus inclusive public procurement remains a catalyst, in bringing about economic prosperity.