The infrastructure procurement gateway review that South Africa's draft regulations would have required is no longer coming under those regulations. The draft General Public Procurement Regulations 2026 were drafted under the Public Procurement Act, and the Constitutional Court declared that Act invalid on 17 September. Nothing stops a municipality preparing projects properly. Nothing in that draft now compels it to.
That is the consequence Fasken partner Hlengiwe Zondo-Kabini sets out in Infrastructure News on 7 October. The draft regulations carried dedicated infrastructure provisions: infrastructure procurement plans, gateway reviews, feasibility requirements and risk-management measures. They cannot be implemented under an Act that no longer exists.
Do we still have to do gateway reviews before we tender?
Not under the draft regulations, because they have no valid Act behind them. The court did not suspend its declaration of invalidity. It found the Act had never been brought into operation, so striking it down left no gap in the law.
What applies is what applied before. Zondo-Kabini lists it: section 217 of the Constitution, the PFMA, the MFMA, the PPPFA, the B-BBEE Act, Treasury regulations, instruction notes and circulars, and each institution's own enabling legislation. Her count is thirty-four pieces of legislation governing state procurement and expenditure.
Preference scoring has not moved either. Under the Preferential Procurement Regulations of 2022, a tender worth R50 million or less is scored 80/20. Above R50 million it is 90/10. In her words, the ruling does not give procuring institutions or bidders a period in which the rules are relaxed.
For municipalities, one instrument in that existing framework already requires stage gates. MFMA Circular 106, issued by National Treasury in September 2020, introduced the Local Government Framework for Infrastructure Delivery and Procurement Management, in force from 1 July 2021. Its minimum requirements are built on project stage gates, from pre-feasibility and feasibility through design to close-out, and eight procurement gates, PG1 to PG8. It sits under the MFMA, not the Procurement Act, so the ruling did not touch it. The fallen draft is not the place to look.
What the gateway rules were for
They were written to stop one thing. Zondo-Kabini describes it as projects reaching the market before designs, funding, approvals and site conditions had been properly addressed. Read that list again, because each item is a way a live contract stops.
Johannesburg Water supplied a clean example in August. Its Erand Tower and Pump Station in Midrand reached roughly 95% and was suspended because the allocated contract budget was exhausted. The utility gave three reasons: unforeseen technical and site conditions, regulatory and environmental requirements, and cost escalation. It then had to start a Section 116(3) process under the MFMA to secure more money.
Two of those three reasons are on the gateway list. Site conditions and approvals are exactly what a feasibility gate is meant to surface before a contractor is appointed. We covered what that stoppage means for the contractor carrying standing time in when a municipal contract runs out of money at 95%.
Who carries the risk now
The buyer does, as before. A project that goes to market underprepared does not fail at tender. It fails on site, months later, as a variation, a claim or a stopped job.
From the contractor's side of the fence, the pattern is predictable. The firms that price unprepared projects most keenly are often the ones least able to carry a stoppage. The better-capitalised firms read the same tender, see unresolved approvals, and either price the risk in or decline to bid. A municipality that skips preparation therefore tends to get a thinner field and a weaker winner.
None of that needed a regulation to be true. The draft regulations would have made the discipline compulsory across the state. Every project would have faced formal independent gateway reviews at key decision points. Major, high-value and high-risk projects would have needed an independent multi-disciplinary review team.
Will the gateway rules come back?
Possibly, but not soon. No replacement Bill has been published since the ruling. Zondo-Kabini's view is that the project-preparation measures have not necessarily been abandoned. Similar provisions could return in future legislation or regulations, but they would need a valid enabling Act and a proper consultation process.
The court declined to tell Parliament how to fix the defects. A replacement law has to start again with meaningful public participation, which is where the original fell short. Contractors are already working through the same reset on their side, as we set out in vendor registration after the court ruling.
The gate you can still run yourself
A procurement officer does not need a regulation to ask four questions before a tender goes out. The list is the risk the draft was written to address, taken straight from Fasken's summary.
- Designs. Are they complete enough for a contractor to price, or will the scope move after award?
- Funding. Is the full contract value budgeted, including escalation, or only this year's tranche?
- Approvals. Are environmental, water use and planning approvals in hand, or still pending?
- Site conditions. Has anyone investigated the ground, the services and access, or will the contractor find out first?
The fourth is where a client usually saves least by skipping. A geotechnical report costs a fraction of a stopped site.
Arabella Infrastructure Solutions is a Johannesburg-based building maintenance and construction company that stands between clients and the contractors doing their work. That position shows both sides of an unprepared project: the client who tendered early and the contractor who discovered the problem. The client page sets out how that works for a public or private buyer.
On Monday
Take the next infrastructure tender your office plans to advertise. Write a one-line answer to each of the four questions above and sign it. If any answer is "not yet", move the advert date before you move anything else.
