Waste Bureau service provider appointments; operational effectiveness; with Minister and Deputy Minister

Meeting report

Opening remarks

The Chairperson commented that only four members of the Portfolio Committee were present. There had been an apparent resignation by Dr Z Luyenga (ANC), who had resigned as a Member of Parliament and as a Member of the Committee. On social media it had been indicated that he may have defected to another party called the African Transformation Movement (ATM). It was still a properly constituted Portfolio Committee meeting by exceeding the rule of having a minimum of three Members.

The Chairperson said the Committee wanted to know how far they were from the operationalisation of the Waste Bureau. It had been established recently, not to take over the functions of the Recycling and Economic Development Initiative of SA (REDISA), but to serve as the body responsible for overseeing the plans of the various waste streams. Government had processed legislation that had made provision for the establishment of the board which Parliament had approved last year, and it should currently be with the National Council of Provinces (NCOP). The Committee would like to be briefed on the staffing and operational matters of the Waste Bureau.

The second objective of the meeting was to be briefed on some supply chain issues. This was not an ordinary request, but information brought to the Committee pointed to some concerns around how certain matters had been handled. The request was in particular to have service providers for the collection, transportation and storage of waste tyres. The Committee had requested the names of the service providers, directors, amount, location of storage facility and the duration of the contract and the employment terms.

The late Edna Molewa, former DEA Minister, had been looking forward to the engagement with the Committee with regard to the Waste Bureau, for it was one of the core mandates of the Department. Key initiatives were about ensuring there was both professional and technical capacity, and ensuring better coordination with different role-players, as well as distribution of the capacity to manage issues it would face for the length and breadth of the country. This process had involved matters relating to REDISA. There were legal issues before the courts of South Africa. The establishment of the Bureau had created responsibilities that would not ordinarily be under its mandate. This was precisely why the Bureau had had incapacity due to resources and personnel. The Waste Bureau had had to pick up existing gaps that were supposed to be handled by REDISA. This was like changing the wheels while the vehicle was moving. The Bureau had been given responsibility for what they ordinarily were not supposed to handle. Finally, there was a process unfolding for the shortlisting for the board.

There were three things the Portfolio Committee was required to consider. A state-owned enterprise (SOE), a body of government, was totally different to an independent private entity. The expectations on its mandate, because of this, had to be aligned with the budget constraints as part of the government fiscus. REDISA was highly resourced, but the functioning of the Waste Bureau was also expected to do the same activities with less funding available. The Bureau went beyond just tyres to include the entire waste value chain. The Department would have to consider its entire structure with a branch that dealt with waste, and how one held such a branch accountable. This mandate must not be a hindrance for accountability as a resource model with a single responsibility beyond tyres, to waste in its entirety.  

Waste tyre tender process

Mr Sekwati Rakhoho, Chief Directorate, Supply Chain Management, DEA, described the process when service providers were appointed as responsible for the waste-tyre process, outlining the process followed to appoint the various collection, transportation and storage facilities for waste tyres.

The appointments were made in accordance with a three-stage terms of reference criteria -- mandatory requirements, functionality requirements, including technical and site visits, and finally pricing and broad-based black economic empowerment (BBBEE) compliance matters. Each bid was measured on a scale, from one being poor to five being excellent. Mandatory requirements were measured with a yes or no grade, with the technical requirements each given a specific score.

The mandatory requirements for micro-collectors was that the bidder must have a valid South African identity document, have an SA bank account, and must be a black citizen in terms of South Africa’s black economic empowerment (BEE) legislation or, if a legal entity, then the ownership structure must be at least 51% black-owned. The bidder must reside within the specified areas, with proof of address to substantiate this. The technical requirements include at least one year’s experience in the micro-collection in waste-tyres, the location in which they were conducting business, experience in working with a micro-depot, and reliable means of contact.  

Mandatory requirements included ensuring the vehicle was suitable and in good condition, and that the applicant had a valid driver’s licence and a valid public driving permit, proof of ownership or a lease agreement, and insurance of each vehicle. The technical requirements considered the bidder’s experience in the waste tyre industry, experience in transportation, and the company’s experience. The evaluation was not evaluated on price, because there were rates that were pre-determined for both micro-collectors and transportation. If tyres were delivered within 50 kilometres, the rates were pre-determined.

The mandatory requirements for a bidder was the need to be a registered legal entity, a registered taxpayer, and was a holder of a SA business bank account. The storage facility itself must be located within 50 kilometres, with a minimum storage facility size required. The technical requirements took into account the available storage area, accessibility, suitability of location and the property zoning. Price considerations were benchmarked against South African Property Owners Association (SAPOA) rates, as per the Departmental adjudication committee recommendation. The Department of Public Works (DPW) used the SAPOA rates to determine the market-relatedness of sites/properties.

The advertisements for bidders were open for 21 days, as follows:

• Micro-collectors ran from 15 June to 6 June 2018, with 356 bids.
• Transportation was advertised from 20 July 2018 to 3 August 2018, with 224 bids received.
• Storage facilities ran from 15 June to 6 July 2018, with 131 bids received.

Bids were all evaluated according to the same checklist. All bidders who met the mandatory requirements were moved to the technical stage. The adjudication of bids was done by the bid adjudication committee (BAC). They had to ensure all the documentation before them was correct, and if a bidder was disqualified then reasons were also provided. The BAC ensured scoring would be fair, consistent and correctly calculated, with all supply chain processes adhered to. Micro-collectors, transporters and storage facilities had 148, 68 and 35 bids accepted respectively.

There were reasons for each unsuccessful tender for both micro-collectors and transporters, according to the criteria. Each unsuccessful bid was provided with the reason for the lack of compliance. This ensured transparency for all unsuccessful bids. Within each category, bidders were disqualified for failure to comply with mandatory requirements, and each company that failed such requirements was listed and the reasons provided.

Concerns were raised by many relevant stakeholders and were legitimate. The Waste Bureau had looked at the terms of reference for micro-collectors, and would look to their registration in a database to have a larger pool of bidders to fulfil the needs of the waste-tyre process. Concerns with the storage facilities had been looked at in the review, based on changes in circumstances with the REDISA case outcomes, the sterilisation of agricultural land, potential new plans and funding implications. There had been an investigation of 20 sites for the potential future engagement.

The Chairperson pointed out that certain issues raised had not been dealt with in the previous presentation.

Mr Rakhoho explained that the documentation highlighted all the information about the micro-collectors, transporters and storage facilities. The information was of a sensitive nature for Members only to ensure compliance with the Protection of Personal Information Act.

Operationalisation of the Waste Bureau

Ms Nolwazi Tetyana, Executive Programme Manager: Waste Bureau, said the functions of the Waste Bureau were to:

• Implement the disbursement of incentives and funds derived from waste management
• charges;
• Identify and promote best practices in the minimisation, re-use, recycling or recovery of
• waste;
• Progressively build capacity of the Bureau to support municipalities in the development and
• implementation of integrated waste management plans and capacity building programmes;
• Support and advise on the development of industry waste management plans, integrated
• waste management plans and other tools, instruments, processes and systems, including
• specialist support for the development of norms or standards for the minimisation, re-use,
• recycling or recovery of waste, and the building of municipal waste management capacity;
• Monitor the implementation of industry waste management plans;
• Monitor and evaluate the impact of incentives and disincentives; and
• Perform any other task or function that the Minister may assign or delegate to the Bureau in relation to the implementation of this Act.

The Bureau must implement the disbursement of incentives and funds derived from the waste management charges. The funds would be used for incentive schemes and to see which industries required what subsidies. The Bureau had to assist municipalities with waste management planning, and there was more that needed to be done to support and advise on the development of industry waste management plans. Only some of the development plans had been implemented, such as waste-tyres, but there was more work that needed to be done. Currently there were a total of 37 employees. The Waste Bureau had a budget for the financial year 2017/18 of R210 million, with R230 million for the following year and R245 million for the upcoming financial year.

The Waste Bureau had a role as a caretaker when the waste tyre management plan expired. The Minister of the DEA had written a letter to the Minister of Finance recommending the operationalisation of the Bureau to be prioritised. The letter had indicated that REDISA participants would be used for all service providers that were needed. There was a request to not have an open tender process, and to use only REDISA participants for the initial 12-month period. Subsequent to that period expiring, the Bureau would be required to run open tenders for service providers.

The Waste Bureau operations were guided by not having a choice and continuing to use REDISA providers. In terms of procurement of future service providers, it was timeous and cautious because of the uncertainty in respect of the REDISA court case, budget availability and the Section 28 process of industry waste management plans.

The Waste Bureau had three work streams: waste tyre operations, business development and research and recycling support. The waste tyre operations focused on the logistical nature of the business with procurement required for service providers such as information technology (IT), equipment and tyre operations. The Bureau’s business development and research considered the recycling market as a whole, its progammes in place, and the small, medium and micro enterprises (SMME) development through the waste process. Recycling support involved the implementation of various projects such as the Recycling Enterprise Support Programme (RESP), the crushers project and the informal sector support pilot project - tools of trade.

The current contracts were split into all the contracts that were related to the waste tyre industry operations mentioned by Mr Rakhoho, and contracts for the recycling market study, tools of trade and legal advisory services. The duration of contracts was three, five or ten years. The longer contracts ensured job security for participants. The longer contract periods helped ensure leases for the storage facilities would no longer fail the compliance and enforcement requirement of prior facilities. The longer contracts ensured the necessary investment could be made. The depot property owners would incur initial costs to ensure the site was ready, but a longer contract would allow for the recouping of the upfront costs. The processors required infrastructure investment, and again the longer contract provided the security of supply to allow for them to commit to such investments.

The operational performance looked to the amount of tyre collections versus the number of tyres processed. 42 511 tons had been processed against 86 036 tons collected. The remaining waste tyres collected but not processed had to be accommodated at depots. The operational challenges involved a loss processing capacity, and were due to non-compliance with tender processes and not adhering to contract specifications. Botec Waste Management and Earth Tread complained about awards for the processing tender being limited to 1 500 tons per month per processor. Processors had received less than they had requested due to the Waste Bureau’s capacity and budget. Pre-processing capacity had been increased, but there was a consideration to open another tender opportunity for processing capacity. There were various areas in seven provinces that required additional transporters, mainly from the depots to the storage facilities around the country.

In reviewing the Waste Bureau operations, the aim in year one was to stabilise waste tyre operation, setting up operational systems, preserving SMME jobs by ensuring equity and to manage the transition. In year two, the aim was to maintain operations, reviewing business models and mitigating risks, progressively building capacity to implement the broader Bureau and to improve efficiencies.

The Waste Bureau had been effective overall, but the transition of the management of tyres had been longer than expected. There was a limit of capacity and resources, but the Bureau had still stabilised operations. There needed to be a greater emphasis on the processing capacity and its challenges within any new plan. Ultimately the work done would be the basis to monitor any new plan.

Discussion
 
The Chairperson requested that there should not be such a big delegation from the Department itself in future. There was an understanding that the issues at hand were quite complex, with many Members wanting to ask questions. The Portfolio Committee would wait for a presentation on the various plans the DEA were required to have, such as the waste tyre plans due to the ongoing litigation.

The last time the Bureau had presented to the Committee, there had been concerns raised about the running of plans, but simultaneously appointing. Service providers were being appointed that necessarily would be part of what the plan constituted. The appointment process should not be finalised until there was clarity. However, service providers had nevertheless been appointed.

Regarding the confidential document given to Members, there were 34 service-providers’ depots appointed to provide storage facilities for pre-processing. Of the 34 appointed, 19 were one single company. The company had been appointed in seven or eight of the nine provinces. Storage had an allocation of R6.2 million per month, and approximately R4 million was allocated to a single company per month. This raised serious questions about possible collusion.  It was unclear if the company would have all the facilities at the time of the tendering to the extent that when the tender was issued, the company was ready to tender. This was negative for the promotion of SMMEs, with more than half the allocation going to one company. Appointments were happening against the background of the Committee requesting this appointment process not to happen, as questions remained regarding how to finalise the plans. By doing the appointing, the Bureau was saying there was no need to continue with the plans on how the collection, storage and processing would take place. There was currently a vacancy for a chief executive officer (CEO) and chief operating officer (COO), and there were processes to appoint, but currently no one was acting in those positions. The organisation was rudderless and leaderless, and he hoped there would be a response indicating a solution to this.

Mr T Hadebe (DA) enquired about the three different numbers of micro-collectors successful listed on the presentation at 145, 147 and148. Why were there three different numbers relating to successful tenderers? Secondly, could the Committee get some clarity on the REDISA court case and the implications for the Waste Bureau? Of the previous REDISA micro-collectors, there were 83 who had not tendered in the process. Finally, the requirements for location were worded differently for the transporters, which was mandatory, and micro-collectors, which required prospective bidders to be in or within 50 kilometres. This was potentially why one found one company in many locations. The point was to help uplift SMMEs by providing an opportunity to assist them in the local area, and avoid collusion.

Ms J Steenkamp (DA) referred to the transport terms of reference, which required the vehicle to be in a good condition but there was no inspection or site visit to check the vehicle. She asked if there were any direct inspections of the vehicle, as some vehicles may look good on paper but were very different in reality. The requirements in the transportations terms of reference required a company to have experience in transportation. Currently, there was a focus on the youth sector, with 51% unemployed. A young entrepreneur one was unlikely to comply with the points requirements without having the adequate experience. Would there be a way to help promote this wider mandate? In terms of the advertisement for tenders, where were they printed and in what sources had they been advertised? Regarding bids received, bids disqualified, bids approved and the contract period, were those that were disqualified told why they were denied?

She said the Bureau’s aim was to build the capacity of the municipalities, and asked how would this be done with such local, provincial and national ways of dealing with waste. There were currently 37 employees -- would there be any more, apart from the CEO? Waste tyres processed had been less than half of the tyres collected -- how did the Bureau plan to make that gap smaller? How many people or companies had complained about not adhering to the contract terms? How would the Waste Bureau go about getting additional transporters in places such as the North West?

Mr R Purdon (DA) referred to the short notice period for the advertisements, and asked if that was the norm in the industry. It seemed a rather short period. In the presentation, there was a view of the bids approved but not a breakdown of the requirements for each province for the three categories. What happened in the case where one province was over-prescribed? Finally, why was there such a big variation in the rates for transportation?

The Chairperson asked what the law said with regard to three, five and ten-year contract periods. Had the Department deliberately ignored the request not to proceed with contracting the service providers and to retain the existing ones until the Section 28 process or litigation with REDISA was concluded?

Ms H Nyambi (ANC) referred to the storage and pre-processing facilities, and asked what happened if their applications were not approved. Since contracts had been signed, how many years would it be until the next bidding would commence?

Ms Nomvula Mokonyane, Minister: Department of Environmental Affairs, said there was a different responsibility for the stand-in arrangement against the mandate of the Bureau itself. Secondly, the supply chain issue had to be considered against the overarching issue of the Constitution and legislation. Thirdly, was the desirability of the use of the targeted land. The current juncture needed to explain the rezoning of agricultural land for storage facilities. With a tendering process, should it not have involved municipalities, the DPW or a tribal authority to allocate a parcel of land? She conceded that the delegation was too big for the Committee, but the biggest loss was the Chief Financial Officer not being present to help answer some of the relevant questions.

In response to the Chairperson, she said it had not been the understanding that the tender process should have been put on hold, but without abdicating responsibility, this detail had not been made clear to the DEA.

What Ms Steenkamp had raised regarding the need to support the municipalities had not yet been implemented, but should be a number one priority.

The Minister said that she and the Director-General both shared the same view of the Constitution and the need for inclusivity, non-racialism and transformation. She would like to come back to the Chairperson about the issue of the CEO.

She had opted not to appeal the court decision, but to facilitate dialogue to develop a plan to find a resolution of the matter in line with the processes of Section 28. She asked to allow the Department to come before the Committee to give the necessary brief, and repeated that the Waste Bureau had not known there should not be a continuation of the tender process.

Ms Barbara Thomson, Deputy-Minister: Department of Environmental Affairs, said the absence of the CFO was an issue, and it was not proper. There had been a request for any of the bid evaluation committee to be present for their guidance on the procedure. She enquired if the technical and site visits had done. There were eight functions of the Waste Bureau -- how many had been met by the Bureau? What had been spent on the Waste Bureau so far -- had it been well spent and what were the investments done by the Bureau itself? In the view of the Bureau, had section 217 of the Constitution been met for the fairness, equity and cost-effectiveness in the procurement of tenders? She asked the DEA officials why there had been unethical exposure in the tender process. For the unsuccessful bidders, had letters been sent as to why they were unsuccessful? It looked as if many bidders had been highly prejudiced by the current process.

Department’s response

Ms Nosipho Ngcaba, Director-General: Department of Environmental Affairs, said hindsight was the best teacher with the lessons learned. The procurement plan had been brought before the Committee, and this plan had been submitted to Treasury in March or April. The Treasury had indicated that as the Accounting Officer, she had to do something to stop the process. However, it was after the process had begun in terms of the tenders within the DEA. Regarding the concerns over procurement, in terms of the supply chain it was guided by legislation. Anything that was not compliant with the legislation may be investigated, but one could not pre-empt what contravened legislation until it was investigated. The process had been run in terms of the requirements of Treasury regulations. Tenders would not always give one what one was looking for, and in this context, there was a need to review the procurement process in the public service. The tenders had been concluded, but without a contract there was no way to pay the suppliers or service providers. The service providers had not been paid until the conclusion of the process.

As the accounting officer, one had to find reasons to intervene in the procurement process. According to the Preferential Procurement Regulations, the cancellation must be followed in terms of Section 15 if there was a change in circumstances, if there was a lack of funding, or if no acceptable tenders received. When there was a change in circumstances, it allowed for an escape route out of a specific contract. Once a tender process had been commenced, there was an exposure to legal action, and the use of legal advisors must ensure the letters sent were in line with a valid change in circumstances to ensure no material loss for the Department. With REDISA, the change of circumstances needed to be confirmed by the court before it was possible to escape the contract without material impact to the state. With the rezoning of agricultural land, if it were not a requirement that it was excluded, there would always be legal authorisation for the use of waste in both industrial and agricultural land. There was no policy in the DEA that no authorisation for agricultural land should be given, not only for waste but other DEA activities.

Mr Hadebe’s question about the various successful tender numbers provided, indicated that the 145 were related to REDISA micro-collectors, and the ones awarded were 148 micro-collectors through the new procurement process.

Regarding the advertisement time period, tenders were processed according to public procurement regulations, and all successful ones were published on the website in line with the regulations. The names of people who had not received awards were not published on the website, but they had the opportunity to appeal the decision.

The absence of the CFO, who had not appeared previously either, was because he was busy with the audit committee.

The Waste Bureau’s further employment would be limited until the Board was appointed, and only when there was a real need for specific employment. The aim was to avoid the matter raised by the Portfolio Committee of employing people without a Waste Bureau CFO or a board appointed.

Minister Mokonyane said the South African Constitution was supreme. Regulations could not be above the Constitution and its procurement sections. Regarding the protection of agricultural land, it was not a DEA issue, but a general policy of the South African Government that the DEA had to comply. The REDISA judgment would indicate what the court would expect from the Department.

The Chairperson said the Minister would have an opportunity to come back before the Portfolio Committee to answer questions raised by the Deputy Minister and further considerations of the caretaker role in light of the REDISA judgment and the procurement process. However, the Committee was very clear that the procurement process should not have continued in the manner it had proceeded. It had made decisions but had been ignored without reasons being given for why the DEA had proceeded. If there were exceptional reasons why the Committee’s recommendation could not be followed, it was reasonable and would have understood. It would like reasons why its recommendations could not be implemented, rather than being ignored. The Director General had stood by the tender process, but one company had received allocations in eight of the nine provinces. The award meant almost R4 million per month of the R6 million budget allocation. One could not proudly say that was merely part of the process. The accounting officer should intervene in such situations, as one could see there was something wrong in this process.

Mr Rakhoho said the advertisement period of 21 days was the period prescribed by the Treasury regulations. A shorter period could be required under certain circumstances, if given approval. Regarding the three, five and ten-year contract periods, this was not regulated and the Public Finance Management Act (PFMA) was silent on the matter. The prerogative of the accounting officer was to decide, depending on the operational requirements and complexities.

The Chairperson interjected that the Committee had been misled that the contract period was three years, and almost all government departments did not exceed three years. Although previously regulated, it was no longer set to a maximum of three years.

Ms Ngcaba commented that there was a possibility to exit a contract through the public procurement regulations. There were constraints in staffing, and it was best to run a process fully. The need to appoint every year was tedious. Treasury had provided a letter that REDISA contracts could be used for only a year. There was belief that accounting officers abused the extension of contracts. The year was to give the DEA a chance to procure the necessary replacements for the REDISA contracts. All current participants had been given guidance, with each province given a workshop on how best to understand the tender process. The REDISA process had not required similar complexity. The procurement process was the result of being compelled by the letter of Treasury to continue REDISA contracts for only the 12-month period.

Mr Rakhoho responded to Ms Steenkamp’s question regarding whether the young and upcoming SMMEs’ issue of experience in the grading criteria was considered. It had been noted that going forward, it was important to look at the terms of reference to ensure they were not too stringent to affect bringing SMMEs.

Ms Tetyana responded to Mr Hadebe that the 83 had been the number of previous REDISA providers who had not submitted bids. Regarding the different areas, the location for micro-collector tenders were in four provinces. The other location referred to the storage tender only.

Mr Hadebe wanted to know why the wording for the micro-collectors and transporters was different.

Ms Tetyana replied that the specifications were for two different tenders, with micro collectors being needed within a specific area, such as the four provinces, and in the other tender there was the need for storage facilities.

The Chairperson interjected that the proof of address was not possible, for one could not have provided proof of being in all the provinces, so that one tenderer was in eight of the nine provinces. He felt there was something wrong with the procurement process as it currently stood.

Ms Tetyana responded to Ms Steenkamp’s question relating to the processors who had complained. One company had wanted 2 000 tons, but had received only 1 500. Another complaint was Botec Waste Management on the difference in the interpretation of what they believed was expected, and what the Waste Bureau expected. Discussions were ongoing between all parties involved. There had been complaints from Heavy Renewable that they were not given tyres, did not receive the tender, and still required tyres to be processed in their plant. There were constraints for the Waste Bureau, and discussions were ongoing for certain processors to receive more tonnage. Collaboration would be used to best solve the issue.

Ms M Afrika, Waste Bureau, said the transportation rates were divided into primary and secondary ones. Primary rates were for shorter routes, with secondary ones usually longer distances -- and sometimes across provinces. Firstly, the various rates were due to the amount of kilometres each driver had to do and the average distance in total. Secondly, the size of the vehicle – from one to ten tons capacity -- required different levels of maintenance and fuel consumption. In certain places such as the Northern Cape with one centre, it was not practical for the primary vehicles to do daily trips, and instead had to wait for enough to be a full load. Once a load had built up, the driver may phone for authorisation. A secondary vehicle did weekly trips and gave a calculation for the following week to help determine the distances and the needs from each depot. This meant the rate was calculated, offered and authorised to allow for the pick-up.

Ms Steenkamp commented that it would be a good idea for the Portfolio Committee to understand how the system worked at an operational level for proper oversight of the process.

Mr A Mvinjelwa, Senior Executive Manager: Waste Bureau, responded to the enquiry about the need to close the gap between collection and processing. It been helped by four operators to increase the processing capacity. They would be ready within the next year. As a result of the gap, there had been planning to see if there would be tyres available for additional processing. There would be a tender process in about six months’ time to cater for the large gap. The unsuccessful processors must be given a chance to step into the gap.

Mr T Moreni, Waste Bureau, responded on the issue of no inspections of the vehicles, and said this was why in the terms of reference the Bureau required a roadworthy certificate and a maintenance plan because it did not have the expertise itself. Most of the tenderers were current service providers and the Bureau did not want to fiddle with the tender process. Secondly, tenderers were given eight months to ensure the rezoning of the land would be done. The Portfolio Committee’s emphasis on the current debate of agricultural land with security would be considered.

Ms Tetyana said that the split between micro-collectors, storage and transporters was provided on the tender outcome sheet.

Mr Hadebe still wanted clarity on why there were 147 and 148 successful micro-collectors’ tenders on the separate documentation. The correct number had been established as 148 -- who was the missing final tender?

Ms Tetyana said the Waste Bureau would get back to the Committee on the discrepancy.

The Chairperson requested a written response on the discrepancy.

He said that issues arising from the management of the transition from REDISA to the Waste Bureau had to be tackled to avoid the issues the Portfolio Committee was highlighting. This was water under the bridge -- the litigation had begun. This was only one stream of waste, and there were many others that had not been dealt with yet. Whatever the outcome of the court case and the negotiations, there needed to be some certainty on the waste tyre issue. They could then concentrate on paper and plastic waste. Plastic waste was a very big problem that required solutions.

The meeting was adjourned.