Master of Laws in Public Procurement Policy and Regulation

Purpose

The purpose of this qualification is to train specialised public officials and private professionals in public procurement law who can contribute to the development of public procurement law at an advanced level and practice in the broad field of supply chain management as specialists in the regulation of the procurement function.

This qualification will instruct learners on the various areas of practice in public procurement and focus on the issues of legal application, domestic, foreign and international law by studying various instruments (local, foreign and international) aimed at regulating public procurement.

Rationale

Public procurement law is one of the fastest growing areas of legal development globally. In recent years there has been a surge in law-making in this area from international bodies such as the World Trade Organisation (WTO), United Nations Commission on International Trade Law (UNCITRAL), Common Market for Eastern and Southern Africa (COMENSA), European Union (EU) and Multilateral Development Banks (MDBs) such as the World Bank. A very large number of countries globally has also seen major developments and reform in this area, including South Africa and most of its neighbours (Namibia has for example adopted a completely new public procurement statute in 2015 and Zimbabwe is currently in the final stages of also adopting a new law), all members of the EU, where a new directive on public procurement in 2014 had to be transposed into national law by 2016, and China, to name a few. These developments have resulted in a significant interest in this area of law globally.

The interest in public procurement regulation also flows from the significant financial scope of public procurement. It is estimated that public procurement accounts for 10-15% of the Gross domestic product (GDP) of an economy on average and in developing countries that figure can go up to 33% (Eritrea), 26% (Angola) and 20% (India). In South Africa, the public sector spent R500 billion in 2013/4 on goods and services and on construction works. The legal regulation of public procurement has consistently been recognised as one of the key areas for attention in promoting better procurement. In South Africa in particular, the National Development Plan consistently highlights the importance of public procurement as a tool for development.

It is estimated that in sub-Saharan Africa there are about 600 000 public procurement officials and in South Africa about 37 000. Since public procurement necessarily involves a transaction between the public and private sectors, it follows that these numbers are at least matched in the private sector. However, there are few opportunities for training in this field. In South Africa, the faculty is the only one offering formal training in this area within its Degree qualifications. Internationally there are only few qualifications in this field and none of them are based in or focused on Africa. At the same time there is a significant need for training, not only in light of the fast pace of development in the field, but also because of the very significant scope of public procurement in financial and developmental terms. Given that public procurement is now a highly regulated area of public and commercial activity in almost all economies, it follows that there is also a significant need for legal training in this field. This qualification will target administrators working in supply chain management units within governments and professional advisors to government suppliers that have some prior learning or adequate experience in law.

It is in response to these developments that the proposal was put forward to introduce this qualification in public procurement law aimed specifically at equipping Learners with the necessary expert knowledge and professional skills to enter the workforce. Learners will complete this qualification with a focus on professional procurement law practice and gain additional professional skills, including focused research and communications skills, specific to procurement legal practice.

Recognition of Prior Learning (RPL)

Learners who do not qualify for admission in terms of the minimum admission requirements may apply for admission based on prior learning and/or workplace experience in public procurement or supply chain management and successful completion of an online introduction to public procurement law studies short course.

A system of Recognition of Prior Learning will be designed for applicants without a qualifying formal legal Degree. This system will evaluate applicants' prior learning and/or workplace experience in public procurement or supply chain management.

Entry Requirements

The minimum entry requirement for this qualification is

• Bachelor of Laws (LLB Degree).

Or

• Any other Bachelor's Degree in Law (excluding the BIuris Degree).

This qualification consists of the following compulsory and elective modules at Level 9 totalling 185 Credits.

Compulsory Modules, at National Qualifications Framework (NQF) Level 9,115 Credits

• International Legal Regimes on Public Procurement, 35 Credits.
• Public Procurement Regulation and Policy in South Africa, 35 Credits.
• Research Portfolio: Public Procurement Law, 45 Credits.

Elective Modules, at NQF Level 9, 70 Credits (Select two modules)

• Policy and Public Procurement Law, 35 Credits.
• Corruption and Procurement, 35 Credits.
• Infrastructure Procurement Regulation and Policy in South Africa, 35 Credits.
• Defence Procurement, 35 Credits.
• Procurement Law Compliance, 35 Credits.

1. Demonstrate expert knowledge on the scope, nature and typologies of corruption in public procurement.
2. Demonstrate expert knowledge on the rationale for a separate regulatory framework for defence procurement and an in-depth understanding of defence procurement policy.
3. Demonstrate expert knowledge on the legal framework applicable to infrastructure procurement in South Africa.
4. Demonstrate expert knowledge on the theory and practice of international public procurement law regimes such as United Nations Commission on International Trade Law (UNCITRAL) Model Law, the European Union (EU) procurement directives, the World Trade Organisation (WTO) Government Procurement Agreement and procurement regulation of the multilateral development banks.
5. Demonstrate expert knowledge on the theory and practice of using procurement law to implement a host of public policy considerations, such as social policy (e.g. equality, wealth distribution, labour), environmental policy and economic policy (e.g. industrial development and support for local goods and suppliers).
6. Demonstrate expert knowledge on the theory and practice of ensuring compliance with the rules governing public procurement and the various mechanisms that may be used to achieve compliance.
7. Demonstrate the ability to conduct independent research of significant depth and breadth in public procurement law.
8. Demonstrate expert knowledge on the legal and policy framework applicable to public procurement in South Africa.

Associated Assessment Criteria for Exit Level Outcome 1

• Interpret, apply and critique the regulatory and non-regulatory measures that are directed at addressing corruption in public procurement.
• Analyse and evaluate the efficacy and utility of anti-corruption measures in public procurement.
• Identify and review the factors that predispose public procurement to corruption.
• Engage with the practice of procurement litigation.
• Formulate and support legal arguments in the area of anti-corruption.
• Critically analyse the impact that corruption has on public procurement and development in developing countries.

Associated Assessment Criteria for Exit Level Outcome 2

• Interpret, apply and critique the regulations that apply to defence procurement.
• Analyse and evaluate the regulations that govern defence procurement.
• Analyse and apply the rules of defence procurement in developed and under developed defence markets.
• Formulate and support legal arguments based on defence procurement issues.
• Judge the importance of defence procurement regulation to national and international security.

Associated Assessment Criteria for Exit Level Outcome 3

• Interpret, apply and critique the regulations that apply to infrastructure procurement in South Africa.
• Analyse and evaluate the law and policies on infrastructure procurement in South Africa.
• Review the rules that apply to infrastructure procurement in South Africa.
• Formulate and support legal arguments based on infrastructure procurement issues.
• Critically analyse the role of infrastructure procurement to development in South Africa, the role of infrastructure procurement in public procurement in general and the importance of infrastructure procurement as a delivery mechanism for development in South Africa.

Associated Assessment Criteria for Exit Level Outcome 4

• Evaluate the regulation of public procurement from an international perspective.
• Appraise the relationship between international instruments of public procurement regulation and national public procurement law regimes.
• Interpret, apply and critique the regulations that apply to international procurement regimes.
• Analyse and evaluate international regulations on public procurement.
• Judge the rules that apply to international procurement within different contexts.
• Formulate and support legal arguments based on public procurement issues.
• Judge the role of public procurement to development and the importance of procurement as the delivery mechanism for development.

Associated Assessment Criteria for Exit Level Outcome 5

• Interpret, apply and critique regulations that aim to incorporate policy considerations into procurement processes.
• Analyse and evaluate public procurement regulations that pursue various policy objectives.
• Review the rules that apply to the incorporation of policy in procurement at national and international levels within different contexts.
• Formulate and support legal arguments regarding policy in public procurement.
• Critically appraise the role of public procurement to sustainable development and the importance of procurement as the delivery mechanism for sustainable development.

Associated Assessment Criteria for Exit Level Outcome 6

• Interpret, apply and critique regulations that set up compliance mechanisms within public procurement regulatory regimes.
• Analyse and evaluate public procurement regulations from a compliance perspective, both in terms of compliance mechanisms and the rules that are subject to such mechanisms.
• Review the rules that facilitate compliance with public procurement law at national and international levels within different contexts.
• Formulate and support legal arguments aimed at enforcing compliance with public procurement rules.
• Judge the role of compliance mechanisms in the design of the overall public procurement regulatory regime.

Associated Assessment Criteria for Exit Level Outcome 7

• Generate ideas in the field of public procurement law.
• Create a research report that demonstrates mastery of the methodology of public procurement law investigation.
• Design solutions to public procurement law problems in authentic settings.
• Critique rules and practices in public procurement.
• Compare and judge various solutions to regulatory questions in public procurement.
• Reflect on development in public procurement law research.

Associated Assessment Criteria for Exit Level Outcome 8

• Evaluate the regulation of public procurement from a South African perspective.
• Interpret, apply and critique the regulations that apply to public procurement in South Africa.
• Analyse and evaluate the law and policies on procurement in South Africa.
• Review the rules that apply to public procurement at the different levels of government in South Africa.
• Formulate and support legal arguments based on public procurement issues.
• Appraise the role of public procurement to development in South Africa and the importance of procurement as the delivery mechanism for development.

Integrated Assessment

The assessment policy for the qualification has been developed in light of the Assessment Policy of the institution and is consonant with the policy for assessment applied to the current Master of Laws (LLM). The policy incorporates the following criteria for effective assessment: validity, reliability, academic integrity, transparency, fairness, achievability and timely feedback.

Each module will include more than one assessment method and the use of more than one type of assessment method (prepared and unprepared written tests, oral examinations, oral presentations, written assignments, online assessments) is provided for. Similarly, each module will include elements of formative and summative assessment, and a final grade of 50% or higher is required to complete the module.