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iRead past columns in Chamberpublications onlinebusinessadviceAVOIDINGLOSTTENDEROPPORTUNITIESGovernment and the private sector have identified a sustainable SMMEsector as key to stimulating economic growth and transformation inSouth Africa.As a result, SMME’s have received significant attention and investment,ranging from the establishment of state-initiated projects to supportivelegislation, a variety of funding institutions and government incentivesthrough the Department of Trade and Industry.Procurement by government in South Africa constitutes approximately21% of GDP and arguably represents the single largest opportunityforpromoting SMME’s.Despite this, and the ever increasing number of SMME’s being established,there has and continues to be an inability on the part of SMME’sto grow their businesses.A significant contributor to this state of affairs is the inability of SMME’s tofully use the opportunities presented to them in the form of tenders. Aplausible explanation for this is no doubt that SMME’s do not fully understandand appreciate the tender process, the regulatory environment inwhich it finds application and their rights.The Regulatory Environment: The Preferential Procurement Policy FrameworkAct (PPPFA) sets out a framework according to which points forprice and preferences must be awarded on tenders above or below acertain value. In this way, government balances the cost effectiveness ofthe procurement with the need to transform.Previously, points for preferences were awarded in an inconsistent mannerin the discretion of the government organ inviting the tender.The promulgation of the new regulations to the PPPFA on 8 June 2011,effective from 7 December 2011, has aligned the award of points for preferencestothe B-BBEE status level of the tenderer.Whilst the new regulations are intended to simplify the award of points,SMME’s have traditionally found it difficult to adapt to the changing regulatoryenvironment and align their conduct accordingly.Warren Parker is Equity Director at JoubertGalpin SearlePractical tips:1. Points for preferences are awarded based on the B-BBEE status levelof the tenderer. Joint ventures are required to submit a combined certificateto claim the preference points. Failure to strictly comply with thenew regulations you result in no points being awarded for preferences.2. Tender documents must be carefully read to determine what the criteriafor responsiveness are. It is not uncommon for a tender offer to bedeclared non responsive simply because, by way of an example, a certifiedcopy of an identity document is not provided.3. A complete set of the tender submitted should be retained to verifyany allegations that may be raised by the Government organ regardingcompliance with the tender responsiveness criteria.4. The Government organ is obliged to tell you that an award of a tenderhas been made. It is incumbent on you to request the reasons forthe award of a tender to a tenderer other than you. Without his informationyou will not be able to assert that a tender award should have beenmade to you.5. The Supreme Court of Appeal has held that “Not every slip in the administrationof tenders is necessarily to be visited by judicial sanction”.This means that an award of a tender by a Government organ contraryto the tender responsiveness criteria may not necessarily be sanctionedby a court. The adage “you win some, you lose some” will no doubt playitself out in this regard.If you feel that a tender should have been awarded to you but was not,then you are entitled to request why the tender was awarded to someoneother than you and to access the evaluation and adjudication reports.Unless you submit acceptable tender offers or dispute incorrectawards you will never capture the opportunities which exist in the awardof a tender to you.38 September 2012 InfocomJoin the Bay’s Business Conversation