27 June 2012
The authors argue that the recent findings by the Public Protector on the Western Cape Communications tender are not a storm in a teacup.
Imagine that tomorrow someone tells you that the political advisers of the President and the National Minister of Energy drafted the tender specifications for the procurement of our nuclear energy programme and then also participated in the tender evaluation process and did not take proper minutes. Imagine then, that after an investigation, the final award to the hypothetical company is found not to have been unlawful, nor corrupt but that there was evidence of maladministration and improper conduct. And on this account, the President and Minister attempted to claim that they never knew that their advisors were involved in the tender process, dismiss the findings as insignificant, because despite finding irregular and ‘improper’ behavior, there was no ‘unlawful’ conduct.
Even in the absence of corruption, we imagine that you would be outraged because irrespective of how you name the conduct, the process of having political advisors involved in tenders is almost the same as involving the President and Minister in procurement processes and a finding of improperness would drive you to demand decisive action. This is because an advisor is only accountable to her political principal, selected at the sole discretion of her boss, is not interviewed nor appointed for a specific skill, and is not accountable in law to anyone other than their political boss.
It is against this context that we argue that the final findings of the Public Protector in the recent DA advertising tender scandal are anything but a ‘storm in a tea cup’. In fact, the DA’s response, through party newsletters and statements, has attempted to spin a cheap victory. The response by COSATU and ANC Western Cape has been no better, exposing a lack of understanding of the real issues at hand. We believe that the findings by the Public Protector, which prompted her to issue a section on remedial action are far reaching, significant and a victory for ensuring clean procurement without political involvement and meddling.
As a starting point, it is important to understand that anyone who has worked in government as an adviser to a Minister or a Premier is certain of two things: first, always ask the executive person to whom you report for permission to carry out a specific task while working for her and, second, avoid getting involved in the work of the specific department and especially the work of a Director General whose own responsibilities and legal obligations are clearly set out in the Public Finance Management Act (PFMA).
Surprisingly, the Premier claims that she never knew that her political advisers participated in drafting the tender specifications for the tender, and in addition, participated in the bid evaluation process. Furthermore, it is inconceivable that special advisors would not inform the Premier on such a strategic contract, nor did they seek her consent before or after the fact (on their version). In all communications between the Premier and her special advisors —the daily briefings, strategic meetings and planning sessions— it just never came up that they were busy drafting tender specifications for a communication campaign and branding exercise that would seek to compel all departments in the Western Cape (thus a transversal tender) to re-brand themselves uniformly including with blue and white colours (incidentally the official colours of the DA). This is inconceivable.
When news came to light about the scandal five civil society organisations in the Western Cape raised the obvious ethical, political and legal concerns with the advisors involvement late in 2011 both with the Premier and then also with the office of the Public Protector.
The Premier conceded that we were correct and undertook that future tender processes would not include her advisers in any capacity whatsoever. To her credit, she immediately conceded and agreed with our submission that two problems arise when advisers get embroiled and involved intentionally or unintentionally: the real likelihood of corruption especially if the political principal is corrupt or corruptible, and the potential for the perception of political influence in the process which could publicly taint and sully an otherwise innocent and honest final tender award.
This is why in our submission to the Public Protector we argued that both Mr Coetzee and Mr Davis should have known better and not agreed to get involved, because as the the Public Protector found, there involvement it was ‘improper’. To this end, we maintain that the Premier should take decisive action against them.
Importantly, the DA’s spin has blurred the real issues. First, quite independently of COSATU and ANC Western Cape, civil society organisations who are not aligned to any political party, submitted a complaint to the Public Protector about the practice of using advisers as was the case here, and sought clarity and a finding from her office about this. We argued that the law was clear about not permitting such involvement, but nevertheless felt that even if she disagreed with our contextual interpretation of the law, that she should make a final finding on this matter for purposes of certainty, and especially, to prohibit the future involvement of both DA and ANC political advisers in any province, national ministry or the Presidency in tender processes. We complained and sought a finding on this aspect because we were more concerned about the implications of both the DA and ANC entrusting themselves with the discretionary power to decide when and how such involvement would be appropriate or not. For this reason, the claim made by the Premier that the complaint was orchestrated by her political opponents is inaccurate and misplaced.
Second, the final findings are anything but a storm in a tea cup. The report contains a damning finding of improperness on the part of the acting Director General at the time and the Premiers advisers. Significantly, at page 112 of the Final Report there is a useful and beautifully crafted section on remedial action which satisfies our organizations concerns about the future role that any DA or ANC political advisers should play in tenders, which is none.
In this section the Public Protector issued two instructions. The first is that the Minister of Finance must amend the Treasury Regulations to regulate the composition of Bid Specification, Bid Evaluation and Bid Adjudication Committees to avoid any uncertainty in regard to the appointment of its members. Second, the National Treasury and Director General must take urgent steps to ensure that the legal status of circulars, practice notes or other instructions are clearly defined in terms of the Public Finance Management Act when they are issued. When this is done, the law will reflect what is already best practice, that political advisers should not participate in government contracts.
That the wording of the Final Report differs from a leaked draft a few weeks earlier deserves explanation. The leaked draft report described the advisors participation as illegal rendering the entire process unlawful and in turn invalidating the contract. The DA having had sight of the leaked report mounted a legal offensive and argued, armed with two legal opinions, that the law did not really make it illegal for advisors to participate and hence the contract was still valid.
At that stage the Public Protector had two options: either be prepared to fight a lengthy legal battle with the DA over the interpretation and let a court of law make a final finding (or an appeal court) which could take years, or she could make a strategic decision to change the wording (and hence the consequences) but still ensure that the end result is palatable and protects public funds and resources.
She chose the latter. And it is now open to COSATU and ANC Western Cape to approach the courts should they so wish. If they do, then the Public Protector merely has to abide by what the court decides is the correct interpretation (and the court would then decide on the appropriate consequences and remedies, and may even uphold the TBWA contract even if it finds the process illegal).
What is interesting here is that the ANC Western Cape and COSATU having nailed their masts to the wall on this aspect, have to support the National Treasury in its compliance with the instructions of the Public Protector. And if alternatively, as threatened, they take the report on legal review, they will in essence be arguing what we have: that both ANC and DA political advisers (and those of any other political party) must be precluded from tender specification drafting processes, bid processes, all tender committees, and tender evaluations because of the potential risk to sully or corrupt a tender award. Whatever happens next, it is unlikely this is the end of the matter.
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