Introduction

Public procurement is extensively used in South Africa as a tool to achieve horizontal policies – that is, policies that are not necessarily directly connected with the functional purposes of the goods, works or services acquired in the procurement. The most pervasive of these policies are the social-policy-underlying mechanisms to redress inequalities in the South African economy created by colonization and apartheid. This policy of economic redress in favour of previously disadvantaged groups, generally known as black economic empowerment (‘BEE’), forms part of the larger project of constitutional transformation in South Africa, which informs the entire government agenda. In public procurement specifically, the primacy of this policy is reflected in the constitutional mandate for BEE mechanisms in procurement. The policy of BEE is so pervasive that it has also found its way into private procurement in South Africa through the Broad-Based Black Economic Empowerment Act (‘BBBEEA’). The South African system thus provides an interesting example to test the ‘fit’ of the WTO's Agreement on Government Procurement (GPA) in a context where social policy plays a major role in shaping procurement practices.

In this chapter we assess the South African approach to social policy in public procurement against the approach to public procurement put forward by the GPA. We argue that while there are options within the general GPA approach for a system such as South Africa's to advance social policies, like BEE through public procurement, the pervasive nature of this policy and the national commitments it represents raise questions about the suitability of the GPA's approach within the South African system.