Understanding Treasury's tender blacklistMonday, 01/10/2012 - 13:21
Are you witnessing corruption but don’t know what to do about it? Ask the team of Corruption Watch experts what to do by writing to: firstname.lastname@example.org and mark your letter 'Dear Corruption Watch'.
Dear Corruption Watch,
The media is reporting that over R600 billion has been lost to corruption since 1994. I presume a lot of this money was part of tender irregularities and kickbacks. But the National Treasury’s database of tender defaulters contains only 2 names / entities. Why is this? How can the public contribute to this list? - Sceptical
It is seriously disappointing that only two fraudsters are currently listed on the National Treasury’s Register for Tender Defaulters. Especially when one considers that the Register has been in existence since 2004!
The purpose of the Register is to alert the public sector to the identities of people or enterprises convicted of corrupt activities in relation to contracts or tendering, as well as to prevent them from supplying goods or services to government for a period of time. The information on the Register is available to the public on the National Treasury’s website: (www.treasury.gov.za/publications/other/Register%20for%20Tender%20Defaulters.pdf)
To understand this situation, we need a better idea of how the Register is supposed to work. Before people or companies can be listed on the Tender Defaulters Register, they must be convicted of corruption relating to state contracts or tenders. In addition, the court must make a special order directing that the convicted person or company’s particulars be placed on the Tender Defaulter’s Register.
Under section 28 of the Prevention and Combating of Corrupt Activities Act, 2004, the court is empowered to direct that the convicted person’s particulars, the sentence and conviction be endorsed on the Register. If a company is convicted of corruption, the court may order that the details of the company and any partner, manager, director or any other person exercising control over the company, who knew or should have known of the corruption, be endorsed on the Register.
After the court has made such an order, the clerk or registrar of the court will forward the order to the Registrar of the Tender Defaulters Register in the Office of the National Treasury, who must then place the names on the Register.
Once a person or company is placed on the Tender Defaulters Register, the consequences are that:
- National Treasury may terminate any existing agreement with the defaulter;
- The State may recover any damages from the defaulter incurred as a result of the corruption
- The defaulter cannot tender for or be awarded another procurement contract for as long as they remain on the Register, which period is determined by National Treasury but must be between 5 and 10 years.
The paucity of names on the Register suggests two things. First, that very few convictions are being secured for corruption of this sort (i.e. relating to state contracts and tenders). This is due to multiple factors including the difficulty of detecting corruption, under-reporting, weak investigative capacity and a lack of political will.
Second, it would seem that litigants (which would usually be state prosecutors) and the courts are not aware of the Register and its operation.
The public can help tackle these problems by reporting corruption in state contracts and procurement. And, when acting as complainants in corruption prosecutions, the public must take a more active role to ensure that the prosecutor requests the Court to order the endorsement of the defaulter’s name on the Register. We should expect the Court to do nothing less, but we must be vigilant.