Construction Industry Development Board Act

Link to law: http://www.gov.za/documents/construction-industry-development-board-act
Published: 2000-11-17

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Construction Industry development Board Act [No. 38 of 2000]
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REPUBLIC OF SOUTH AFRICA ‘--‘“ ‘-”” ‘-- “~’
GOVERNMENT GAZETTE
IPHEPHANDABA LEZAZISO LIKAHUL’UMENI
.
IRIPHABILIKI YASENINGIZIMU AFRIKA

CAPE TOWN, 17 NOVEMBER 2000 vol. 425 No. 21755
EKAPA. 23 LiNOVEklBA 2000
— —.— t .
THE PRESIDENCY I IHHOVISI LIKAPRESIDANTI
N(). 1101. 17 N[)vcmkrer’ 2000”
It i\ herehy notitied tb:lt the Actins President }ILIS :Lssen:ed to [he Follow in: Act wh:ch is hereby p u b l i s h e d for ge[wrul int’wmNion: -—
~ No, ~1755 GOVERNMENT GAZETTE, 17 NOVEMBER 2000
Act No.38,2000 CONSTRUCTION INDUSTRY DEVELOPMENT BOARD ACT, 2000
(English text signed by the Acting President.) (Assented to 13 November 2000.)
ACT To provide for the establishment of the Construction Industry Development Board; to implement an integrated strategy for the reconstruction, growth and development of the construction industry and to provide for matters connected therewith.
PREAMBLE
WHEREAS the construction industry plays an indispensable role in the South African economy in providing the physical infrastructure which is fundamental to the country’s development;
WHEREAS the construction industry experiences instability and interconnected structural problems which are associated with the declining demand in recent decades, the volatile nature of the demand and the consequent shedding of Iabour;
WHEREAS the construction industry operates in a uniquely project-specific and complex environment, combining different investors, clients, contractual arrangements and consulting professions; combining different site conditions, design, materials and technologies; combining different contractors. specialist subcontractors and the workforce assembled for each project; ,-
WHEREAS the development of the emerging sector is frustrated by its inability to access opportunity, finance and credit as well as vocational and management training;
WHEREAS investment in physical infrastructure is constrained and there is a need to promote effective public sector spending and private sector investment and to interpret investment trends;
WHEREAS the construction industry impacts directly on communities and the public at large and its improved efficiency and effectiveness will enhance quality, productivity, health, safety, environmental outcomes and value for money to South African society;
WHEREAS the specialised and risk-associated nature of construction places an onus on the public sector client to continuously improve its procurement and delivery management skill in a manner that promotes efficiency, value for money, transformation and the sustainable development of the construction industry;
WHEREAS the development of the industry requires leadership and the active promotion of best practice; and
WHEREAS Government has a vision of a conswction industry development strategy that promotes stability, fosters economic growth and international competitiveness, creates sustainable employment and addresses historic imbalances as it generates new construction industry capacity;
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4 No. 217S5 GOVERNMENT GAzEnE, ] 7 NOVEMBER 20(XI — —
Act No. 38, 2000 CONSTRUC’TIO,N INt)USTRY DEVELOPMF,NT BOARD ACT, 2000
B E IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,as follows: CHAPTER ONE
DEFINITIONS
The purpose of this chapter is to define words to which a meaning is attached which 5 expands on the dictionary meaning of the word.
Definitions
1. In this Act, unless the context otherwise indicates—- ((1)
(b)
(c)
(d)
(e)
(J)
(g)
(h)
(i)
(j)
(k)
(1)
(m) (n)
(0)
(p)
(q) (r)
(,s)
(f)
“best practice” means a desirable and appropriate standard, process, procedure, method or system in relation to the delivery process and the life cycle of fixed assets; “best practice contractor recognition scheme” means the best practice recognition scheme referred to in section 21: “best practice project assessment scheme” metins the best practice project assessment scheme referred to in section ?3; “Board” means the Construction Industry Development Board established by section 2; “chairperson” means the chairperson of the Board appointed in terms of section 6(1 l)(a); “chief executive officer” means the chief executive ofllcer appointed in temls of section 10; “client” means a person, body or organ of state who enters into a contract to procure construction works; “construction industry” means the broad conglomeration of industries and sectors which add value in the creation and maintenance of fixed assets within the built environment; “contractor” means a person or body of persons who undertakes to execute and complete construction works; “construction works” means the provision of a combination of goods and services arranged for the development, extension, installation, repair, mainte- nance, renewal. removal, renovation, alteration, dismantling or demolition of a fixed asset including building and engineering infrastructure; “emerging enterprise” means an enterprise which is owned, managed and controlled by previously disadvantaged persons and which is overcoming business impediments arising from the legacy of apartheid; “emerging sector” means that sector of the construction industry which comprises emerging enterprises; “member” means a member of the Board appointed in terms of section 6: “Minister” means the Minister of the National Department responsible for Public Works; “organ of state” means an organ of state as defined in section 239 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996): “policy” means Government policy that impacts on construction industry development; “prescribed” means prescribed by regulation in terms of section 33; “project” means a construction works contract or o series of related construction work contracts: “register” means the n:ttion~l register of contractors referred to in section 16 or the register of projects established in terms of section 22; “regulation” means a regulation made under section 33 of this Act: and
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50 (1{) “this Act” includes the r~gulations
6 No. 21755 GOVERNMENT GAZETTE, 17 NOVEMBER 2000
Act No. 38, 2000” CONSTRUCTION INDUSTRY DEVELOPMENT BOARD ACT, 2000
CHAPTER TWO
CONSTRUCTION INDUSTRY DEVELOPMENT BOARD
The purpose of this chapter is to establish the Construction Industry Development Board and to provide for its objects, powers, functions and duties and to provide for administrative matters. 5
Establishment of Board
2. The Construction Industry Development Board is established as a juristic person.
Independence of Board
3. The Board must perform its functions free from undue influence.
Objects of Board
4. The objects of the Board are to—
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(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i) (j)
(k)
promote the contribution of the construction industry in meeting national construction demand and in advancing— (i) national, social and economic development objectives;
(ii) industry performance, efficiency and competitiveness; and 15 (iii) improved value to clients; provide strategic leadership to construction industry stakeholders to stimulate sustainable growth, reform and improvement of the construction sector; determine and establish best practice that promotes— (i) improved industry stability; 20
(ii) improved industry performance, efficiency and effectiveness; (iii) procurement and delivery management reform; (iv) improved public sector delivery management; (v) national social and economic objectives, including—
(cm) growth of the emerging sector; 25 (bb) labour absorption in the construction industry; (cc) improved Iabour relations; and (old) positive safety, health and environmental outcomes;
(vi) human resource development in the construction industry; promote best practice through the development and implementation of 30 appropriate programmed and measures aimed at best practice and improved performance of public and private sector clients, contractors and other participants in the construction delivery process; promote uniform application of policy with regard to the construction industry throughout all spheres of Government; 35 promote, establish or endorse— (i) uniform standards; and
(ii) ethical standards, that regulate the actions, practices and procedures of parties engaged in construction contracts; 40 promote sustainable growth of the construction industry and the participation of the emerging sector therein; promote appropriate research on any matter related to the construction industry and its development; implement policy on construction industry development; 45 advise the Minister on policy and programmed which imPact on construction industry growth and development: and promote any other related objective.
8 No, 21755 GOVERNMENT GAZETTE, 17 NOVEMBER 2000
Act No. 38, 2(KKI CONSTRLICTION INDUSTRY DEVELOPMENT BOARD ACT, 2000”
Powers. functions and duties of Board
5. (1) To provide strategic leadership, the Board— (a) must promote and implement policies. programmed and projects aimed at,
amongst o[hers— (i) support of emerging enterprises sector; 5
(ii) work process transformation; (iii) improved Iabour relations: (iv) human resource development; (v) innovation and best practice processes;
(vi) simpiihcation of regulatory procedures; 10 (vii) procurement reform;
(viii) standardisation and uniformity in procurement documentation, practices and procedures;
(ix) best practice and value for money with regard to design; (x) regional co-operation; and 15 (xi) international competitiveness:
(b) may initiate policy refinement and development in cooper~tion with Government:
(c) must facilitate communication between construction industry stakeholders, all spheres of Government and statutory bodies: 20
(d) must establish a construction industry stakeholders” forum as contemplated in section 13; and
(e) must provide information to stakeholders on best practice, industry perfor- mance and improvement and generally on matters affecting the construction industry. 25
(2) To promote best practice, the Board— (a)
(b] (c)
(d)
(e)
(f)
(c?)
( h )
must, in consultation with the Minister, determine best practice priorities t’or the construction industry; must, by notice in the Gazette, publish best practice standards and guidelines; may develop targets and performance indicators related to those best practice 30 standards and guidelines and establish mechanisms to monitor their imple- mentation and evaluate their impact; must establish and maintain a national register of contractors as contemplated in Chapter Four, which provides for categories of contractors in a manner which facilitates public sector procurement and which integrates other 35 statutory contractor registers; must establish and maintain a best practice contractor recognition scheme as contemplated in section 21, which promotes contractor development and monitors contractor performance: must establish and maintain the register of projects and the best practice 40 project assessment scheme contemplated in Chapter Four. for the promotion. assessment and evaluation of best practice on construction contracts; may establish and maintain a register of suppliers, manufacturers or service providers in the construction industry. The provisions of Chapter Four apply with the necessary changes required by the context, to that register; and 45 may develop and promote other programmed and projects that promote best practice.
(3) To advance [he uniform application of policy with regard to construction industry development, the Boud-
(a) mast promote such uniform application of policy throughout all spheres of’ 50 Government:
(b) must identify delivery constraints in the public sector and tidvise the Minister on policy, practice and procedural reform in relation to public sector client performance and public sector capacity improvement:
(c) must. within tbe framework of the procurement policy of Government. 55 promote the standardisation of the procurement process with regard to the construction industry:
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10 No. 21755 CK)VERNMENT GAZETTE, 17 NOvEMBER 2(KKI
Act No. 38, 2000 CONSTRUCTION INDUSTRY Development BOARD ACT, 2000
(d) may advise all organs of state on human resource development in relation to public sector management ot’ cot~struction delivery; and
(e) in consultation with relevant institutions and professional bodies, develop and pI’OLTIOte appropriate training programmed for pub]ic sector officials.
(4) To promote uniform and ethical standards within the construction industry, the 5 Board—
(a) must publish a code of conduct for all construction-related procurement and all participants involved in the procurement process; and
(b) may initiate, promote and implement national programmed and projects aimed at the standardisation of procurement documentation, practices and proce- 10 dures.
(5) To promote sustainable growth of the construction industry and the participation of the emerging sector therein, the Board—
(a) may monitor economic activity within the coristruction industry and the measures according to which public sector spending is scheduled; 15
(b) must consult with ail organs of state to identify construction-related budgets and the application thereofl
(c} may assess the impuct of public expenditure on the construction industry and advise the Minister accordingly;
(d) may promote export of construction goods and services; ~~ [e) may, subject to the Statistics Act, 1999 (Act No. 6 of 1999), collect statistics
from contractors, suppliers, manufacturers and service providers in the construction industry, including the size and nature of their business undertakings and the size and nature of the projects they undertake;
(~) may conduct surveys of the construction industry for the purpose of this Act: 25 (g) may monitor national programmed aimed at, amongst others—
(i) promotion of the emerging sector; (ii) work process transformation;
(iii) innovation and best practice processes: (iv) streamlining regulation and procedures; (v) procurement reform; (vi) standardisation and uniformity in procurement documentation, practices
and procedures; (vii) best practice and value for money with regard to design;
(viii) regional co-operation; and (ix) international competitiveness; and
(A) must publish quarterly and annual reports on the state of the industry. (6) To promote appropriate research, the Board—
(a) may develop, promote and update a construction industry research agenda that defines national development priorities: and ’40
(b) may establish a knowledge centre through which industry and clients can access knowledge and experience on innovation and best practice.
(7) To implement policy, the Board- (a) must submit an annual business plan to the Minister for approval, subject to
section 32; 45 (b) must annually report to the Minister on the implementation of its business
plan; and (c) must, subject to section 14. at least once every five yetirs, obtain an
independent evaluation of itself regarding its effectiveness.
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1~ No. ?1 755 GOVERNMENT GAZETTE. 17 NOVEMBER 2000”
Ac~ N(). 38, 2000 CONSTRUCTION INDUSTRY DEVELOPMENT BOARD ACT. 2000
(8) The Board may advise the Minister on policy and legislation impacting on the construction industry or propose amendments to this Act to the Minister.
(9) The Board may advise the Minister on the electiveness of the implementation of policies, programmed or legislation developed by the Minister or by the Board,
( 10) The Board may— 5 (a) provide services in relation to its objects to any person, body of persons or
organ of state and charge fees for [hose services; (b) establish a committee to assist it in the performance of its functions and
appoint any person as a member of that committee after due consideration of provincial representation; 10
(c) enter into an agreement with any other person, body of persons or organ of state to perform any of its functions; and
(d) perform such other functions as may be prescribed and generally do all such things as it considers necessary to ~chjeve the objects of this Act.
Composition of Board 15
6. ( 1 ) The Board consists of not fewer thin nine, but not more than 13 members, appointed by the Minister.
(2) The Minister may, bv notice in the Ca:ette, determine the criteria for nominations in terms of this section, taking into accollnt the objects, powers, functions and duties of the Board as contemplated in sections 4 and 5. 20
(s) In the appointment of the members of the BoaI-d, the Minister must take cognizance of the need [CI :~chieve a re:lsonab]e balance of expeflise and knowledge Of the construction industry, whilst broadly reflecting the race, gender and geographic composition of the Republic.
(4) When necessary, the Minister must invite, by notice in the Ga:etre and other 25 newspapers which are widely read throughout the Republic, nominations of persons as candidates for positions on the Board, to be submitted to the Minister within a period of at least 60 days.
(5) The invitation referred to in subsection (4) must specify the required criteria. (6) On receipt of any nomination, the Minister must, within 60 days from the expiry 30
date specified in the invitation, appoint the membel-s of the Board. (7) If the Minister receives no or insufficient nominations within the period specitied
in the invitation or the notice, the Minister may appoint any person who, in the opinion of the Minister, meets the criteria contemplated in subsection ( 3).
(8) A nominated person— 35 (a) must be a citizen of and ordinarily resident in the Republic: (b) may not be an unrehabilitated insolvent ‘whose insolvency was caLlsed by his
or her negligence or incompetence; (c) may not be a person who has been removed from an office of trust on account
of misconduct; 40 (d) may not be a person who has been convicted of an off’ence, other than an
offence committed prior to 27 April 1994 associated with political objectives, and was sentenced to imprisonment without the option of u tine, or. in the case of fraud, to a fine or imprisonment:
(e) subject to subsection ( 12), may not be a person who has been convicted of an 45 offence in a foreign country and was sentenced to imprisonment without an option of a tine, or, in the case of fraud. to a fine or imprisonment.
(9) Within 30 days at’ter the appointment of the Board. the Nlinister must determine the time and place of its first meeting and the Board must determine the time and place of any future meeting. 50
( 10) The Minister mmt, w soon as practicable after [he ~ppointment ot’ the menlbel-s of the Board, by notice in the GCz:etfe. pub]ish-
(a) the name of every person appt]inted as a member: (h) the date from which the appointment takes ef~cct: :md (c) the period for which the appointment is tnade.
14 No. 21755 :.XIVFXN,MENT GAZETTE, 17 NOVEMBER 2000 —.———.. .—— — — .— ..-— - — _ _ _ _ _ _ —-
Act No. M, 2000 CONSTRLJCTION INDUS ‘rRY DEv’FLOPMENT BOARD ACT 2000
(11) The Minister must appoint persona, who in the opinion of the Minister have experience and expertise in matters pertaining to the construction indus[ry and its development objectives, to be–-
(a) the chairperson of the Board; arid (b) [he deputy chairperson of the Board.
( 12) For the purpose of subsection (8)(e), the Minister must take cognizance of the prevailing circumstances in a foreign country relating to a conviction.
(13) If a person, who is a political office bearer, accepts an appointment in terms of this section, he or she must vacate the political office before the appointment in terms of this section takes effect.
Period and conditions of membership
7. (1) Board members hold oflice for a period not exceeding three years, on the conditions determined by the Minister.
(2) A Board member may not serve for more than two consecutive terms, unless the Minister considers it necessary to reappoiri! a member, [o ensure continuity or on the grounds of the specific expertise of that member.
(3) A third of the Board members must be reappointed, bu[ if it is not possible to do so, a number as near to a third of the members as possible may be so appointed.
(4) A member must immediately vacate office if he or she— (a) is convicted, whether in the Republic or elsewhere, of theft, fraud, forgery or
uttering a forged document, perjury or any offence involving dishonesty or of any offence in terms of the Comlption Act, 1992 (Act No. 94 of 1992), the Companies Act, 1973 (Act No. 61 of 1973), or of contravening this Act;
(b) becomes a political office bearer; (c) becomes an insolvent as contemplated in section 6(8)(c); (d) has been removed from an office of trust on account of misconduct; (e) is relieved of his or her duties under subsection (5); or (f) without authorisation discloses or improperly acts on information gained as a
result of his or her membership of the Board. (5) The Minister must, in writing, immediately relieve any member of his or her duties
if that member has-– (a) failed to vacate his or her office in terms of subsection (3) or (4); (b) failed to comply with section 6(8); (c) failed to attend two consecutive meetings of the Board without leave of the
Board as noted in the minutes of those meetings, which leave maybe granted retrospectively; or
(d) failed to uphold and advance the objects of the Board, (6) If a member dies or vacates his or her office before the expiry of the period for
which he or she was appointed, the Minister may appoint another person in accordance with section 6, to fill the vacancy for the remaining portion of the period for which that member was appointed.
Remuneration of members
8. A member of the Board or a committee of the and allowances as determined by the Minister, in Finance.
Disclosure of interest
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Board receives such remuneration consultat ion with the Minister of
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9. If a member of the Board or his or her spouse. imrnedi~te family member, life partner or business associate, has any director indirect financial interest in ony matter to be dealt with at any meeting of’ the Board, that member-
((1)
[[))
l(’)
(([)
must disclose that-interest and the extent thereof ill writing to the chairperson, who must table that ~ta[e[nent at ~.hc next rneetin: of [he Bo; lrd; may not ottcnd j.my por[ion (~1 a lneeting of (he Board during the consideration of th:~t matter by the B~).ml: may not in :iny manner [,&c part as ;.L {nenlber of the Bored in the c{)nsidcr~tion of that matter by the Elow~i: :md rmry not in any manner ende:lvour it) inlluence the opinron or vote of any other member ot’ the Bo:\rd in connccti(~ri wi:h th:tt m:,t!cr,
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16 N[) ?1755 GOVERNMENT G.AZETTE. 17 NOVEYIBER 2000
)ict No. 38, 2000 CO]NSTRUCTIOY I,NDUSTRY DEVELOP\l ENT BOARD .ACT. 2000
Chief executive oficer
~~. ( 1 ) The Board, in consultation with the LMinister, appoints [he chief executive ofticer.
(2) The chief executive oflicer may be reappointed at the expiry of his or her term of office.
(3) The chief executive ofticer holds office for a period of five years, subject to such conditions as the Board determines, which include the determination of remuneration and allowances in accordance with a system approved by the Minister, in consultation with the Minister ot’ Finance,
(4) The chief executive otiicer must enter into a performance agreement with the Board on accepttince of the appointment,
(5) The chief executive ofticer_ (CZ) is responsible to the Board for the execution of his or her functions in terms of
this Act; (b) must manage and control [he daily Ilctivi[ies of the Board. in accordance with
the business and financial plans of the Board.
Staff of Board
11. ( 1 ) The chief executive officer may, on such conditions as the Board determines, appoint such employees as are necessary to enable the Board to properly carry out its functions.
(2) The Board pays its employees out of its funds such remuneration. allowances. subsidies and other benefits as the Board determines in accordance with a system approved for that purpose by the Minister, with the concurrence of the Minister of Finance.
(3) An employee of the State may, subject to the Public Service Act, 1994 (Proclamation No. 103 of 1994), be seconded to the Board.
Meetings
12. (1) The Board must meet at least four times a year. (2) The chairperson of the Board or, in his or her absence, th~ deputy chairperson,
must give each member of the Board 14 days written notice of the time, date and place of’ the meeting and the matters to be discussed.
(3) The chairperson or, in his or her absence, the deputy chairperson presides at meetings of the Board.
(4) In the absence of both the chairperson and the deputy chairperson, a member of the Board, elected by the members present, presides at meetings of the Board.
(5) The chairperson or, in his or her absence, the deputy chairperson, may at any time call an additional meeting of the Board.
(6) The Board must keep a register of attenckmce and minutes of its meetings and must circulate copies thereof to the members of the Board within two weeks after the meeting to which it relates.
(7) The minutes, when confirmed at the next meeting and signed by the person who chairs that meeting, are a true and correct record of the proceedings.
(8) The quorum for a meeting of the Board is a majority of its members. (9) A decision of the majority of the members of the Board present, fit any meeting,
constitutes a decision of the Board. ( 10) 10 [he event of an equal number of votes. the person presiding at the meeting has
a casting vote in addition to that person’s deliberative vote. (,1 1 ) A decision t~ken by the Board or an act performed under the authority ot’ the
Board is not invalid by reason only of a vacancy on the Board or because a pemon who is not entitled to sit as a rnen}ber of the Board sat as a member at the time \vhen the decision was taken or the act \vM authorised, if the decision wti> taken or the act was authorised in good laith by the requisite majority of the members of the Board who were present at the time ancl entitltxl to vote as mernbccs.
Stakeholder consultation
13. ( I ) The Board [nust constitute I construction industry st:keholders’ t’twLIn~ to inform it on matters that atfecr the dc\elopment of the construction industry.
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18 No. 21755 GCJVERN,MENT GAZEITE, 17 NOVEMBER XKX) —.
Act No. 3S, 2000 CONSTRUCTION INDUSTRY DEVE1.OPMENT BOARD ACT. 2000
(2) The stakeholders’ forum comprises individuals who hav~ experience, expertise or skills necessary to enable it to ~~vise [he ~QMd appropriately and who represent stakeholders in the construction industry
(3) In constituting the stakeholders’ forum the Board must, once every two years, invite nominations from organised labour, organised business and construction industry 5 related bodies, clients, societies and associations in a manner the Board considers fit.
(4) The Board must establish a stakeholders’ forum from the nominations submitted in terms of subsection (3), on the conditions it considers appropriate.
(5) The Board must convene, at least once per year, a meeting of the stakeholders’ forum with the Minister to discuss matters raised by the stakeholders’ forum or the 10 Board and submitted to the Minister, in writing, two months prior to that meeting.
(6) The chairperson of the Board presides over the meetings of the stakeholders’ forum, and section 12(3) applies to the meetings of the stakeholders’ forum, with the changes required by the context.
(7) Subject to section 5( 10)(b), the Board may establish a committee or a focus group 15 to address issues of interest to specific sectors or stakeholders.
Evaluation and review
14. (1) The Board must facilitate a review of its activities in relation to its goals and objects, at least once every five years.
(2) A panel drawn from the public sector and the private sector and appointed by the 20 Minister on the basis of expertise in relation to the functions of the Board, must undertake the evaluation.
(3) The panel must submit its report and recommendations to the Minister.
Delegation of power
15. (1) The Board may delegate any of its powers, in terms of this Act, to any person, 25 body of persons or organ of state it considers fit. 1
(2) The Board is not divested of any power so delegated and may amend or withdraw any such delegation.
CHAPTER THREE
REGISTER OF CONTRACTORS 30
The purpose of this chapter is to establish a public sector register of contractors that will support risk management in the tendering process; reduce the adminis- trative burden associated with the award of contracts; reduce tendering costs to both clients and contractors; enable effective access by the emerging sector to work and development opportunity; assess the performance of contractors in the 35 execution of contracts and thus provide a performance record for contractors; regulate the behaviour and promote minimum standards and best practice of contractors; store and provide data on the size and distribution of contractors operating within the industry and the volume, nature, performance and develop- ment of contractors and target groups; and to enable access by the private sector 40 and thus also facilitate private sector procurement.
Registration of contractors
16. ( I ) The Board must, within the first three years of its establishment, establish a national register of contractors, which categorises contractors in a manner that facilitates public sector procurement and promotes contractor development. 45
(2) The register of contractors must—
20 No. 21755 GOVERNMENT GAZE’ITE, 17 NOVEiNtBER 2000
ACt No. 38. ?,000 CONSTRUCTION INDUSTRY DEVELOPMENT BOARD ACT, 2000
(a) indicate the size and distribution of contractors operating within the construction industry;
(b} indicate the volume, nature and performance of contractors and target groups; and
(c) enable access by the private sector and thus facilitate private sector 5 procurement.
(3) The Minister must prescribe the manner in which public sector construction contracts may be invited, awarded and managed within the framework of the register and within the framework of the policy on procurement.
(4) From a date determined by the Minister, by notice in the Gcr:erte, every organ of 10 state must, subject to the policy on procurement. apply the register of contractors to its procurement process.
(5) The Minister must prescribe the requirements for registration, taking into account the different stages of development of contractors in the construction industry, the development of the emerging sector and the objectives of this Act. 15
(6) A contractor may, in writing, apply to the Board for registration and the application must be accompanied by the prescribed particulars and prescribed administration fees, which are not refundable.
(7) If the Board is satisfied that the app]icant is entitled to registration, it must cause the necessary entry to be made in the register aqd the chief executive oficer must issue 20 to the applicant a registration certificate in the prescribed form.
(8) The Minister may, on the recommendation of the Board, prescribe a fee to be paid annually to the Board by all contractors registered with the Board in terms of subsection (7).
Keeping of register 25
17. (1) The Board shall keep and maintain a register of the prescribed particulars of contractors who are registered with the Board and a registered contractor must, in writing, notify [he Board of substantive changes of those particulars within 30 days after such a change,
(2) A contractor may apply to the Board to amend its category status. 30
Unregistered contractors
18. (1) A contractor may not undertake. carry out or complete any construction works or portion thereof for public sector contracts, awarded in terms of competitive tender or quotation, unless he or she is registered with the Board and holds a valid registration certificate issued by the Board. 35
(2) Any contractor who carries out or attempts to can-y out any construction works or portion thereof under a public sector contract and who is not a registered contractor of the Board in temls of this Act, is guilty of an offence and liable, on conviction, to a frne not exceeding ten per cent of the value of the contract so carried out.
(3) A contractor referred to in subsection (2) must, upon receipt of a written notice by 40 the Board served on him or her in the prescribed manner, cease to continue any public sector construction work.
(4) A contractor who receives a notice referred to in subsection (3), during the currency of o contxact, may be permitted to complete the construction works or portion thereof, as determined by the Bow-d. 45
Removal of names from and restoration thereof to register
19. ( 1 ) The Board may order the chief executive officer to remove the name OF mly contractor from the register, it’ the Board is satisfied that such contractor has breached the requirements and conditions for registration.
(2) Any registration which is pro~ed to the satisfaction of the Board to ha\e been 50 made in error or as .1 result of i~lisrepresent:{ ti{)n or in circumstances not authorised by this Act, must be removed from the register. ~nd the reason for that removal mLIst be made in the register,
(3) A contractor whose name is removed from the register in rerms of subsection L I ) or (~) MLIS[ be notified thereot’ by the chief executive oticer by prepaid registered post 5S sent to the address appearing in the register.
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~~ No. 21755 GOVERNMENT GAZETTE. 17 NOVEIVIBER 2000
Act N(). 38, 2000 CONST~LICTION lNDtiSTRY DIWELOPfvl~XT B0,14RD .)lCT. 2000
(4) The effective date of cancellation of a registr~tion certificate is the date on which notice is given in terms of subsection (3).
(5) AS from the date on which notice is given in subsection (3)— (a) any registration, in terms of this Act, of the contractor concerned is cancelled;
and 5 (b) that contractor may not perform any act which he or she was entitled to
perform as a registered contractor. (6) A contractor whose name and particulars ha\e been removed from [he register in
terms of this section, may be restored to the register, if that contractor complies with such requirements as the Board may determine. 10
(7) A contractor whose name and particulars are removed from the register in terlms of this section, during the currency of a public sector contract, may be permitted to complete the construction works or portion thereof, as determined by the Board.
Duration and renewal of registration
20. (1) Registration by the Board in terms of this Act is valid for a period of three 15 years.
(2) A registered contractor must xpply for renewal of’ regis~ration three months before the existing registration expires or on the sale or transfer of the contractor’s business and must pay the prescribed renewal fee.
(3) The Board is under no obligation to approve an application for renewal by reason 20 of the fact that the contractor is at that stage registered with the Board in terms of this Act.
Best practice contractor recognition scheme
21. The Board must, within a reasonable period after the establishment of the register of contractors, establish a best practice contractor recognition scheme whicb— 25
(a) enables organs of state to manage risk on co!nplex contracting strategies; and (h) promotes contractor development in relation to best practice standards and
guidelines developed by the Board in terms of section 5(2).
CHAPTER FOUR . .
REGISTER OF PROJECTS 30
The purpose of this chapter is to establish a register that gathers information on the nature, value and distribution of projects and provides the basis for a best practice project assessment scheme to promote the performance of public and private sector clients in the development of the construction industry.
Register of projects 35
22. ( 1 ) The Board must, within the first three years of its establishment, establisb a register of projects to gather information on [he na ure, value and distribution of projects
I
and provide the basis for the best practice projec assessment scheme contemplated in section 23.
(2) The Minister must prescribe the requirements for the registration of projects, 40 taking into account the different size and characteristics of projects in the comtruction industry and the objectives of this Act.
(3) All construction contracts above the prescribed tendei- value must be recorded in the registe[-.
(4) The Minister may, on the recommendation of the Board, prescribe a fee to be paid 45 to the Board by all clients for registration of projec[s.
Best practice project assessment scheme
ZS. ( ] ) The B~:~rd nlust, within a re:~sotlable period :Ifter the establish~~wnt Of tht register of projec[>, establish a hes[ practice project as\c>\ment whemc. baM?Li on the best practices identified by [he Board in terms of section 5. 5()
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Act No. 38,2000 CONSTRUCTION INDUSTRY DEVELOPMENT BOARD ACT, 2000
(2) After a date determined by the Minister in the Gu;erte all construction contracts above a prescribed tender value are subject to an assessment, in the prescribed manner, of compliance with best priictice standards and guidelines published by the Board in the Gazetre, and different dates may be determined for different practices.
(3) Every client who engages in the best practice project assessment scheme must pay to the Board a prescribed percentage of the contract sum as determined at the time of the awarding of the contract.
CHAPTER FIVE
FINANCIAI, MANAGEIvIENT
The purpose of this chapter is to regulate the financial management of the Board, subject to the Public Finance Management Act, 1999.
Funding of Board
24. ( 1 ) The funds of the Board consist of— (a) money appropriated by Parliament, for the achievement of the objects of the
Board; (b) income derived by virtue of the exercise and performance of its powers,
functions and duties; (c) donations or contributions received by the Board from any source with the
approval of the Minister; (d) any other income, including interest earned on any investment made in terms
of this section. (2) The Board must—
(a) use its funds to defray expenses incurred by it in the exercise of its powers and the performance of its functions and duties;
(b) use donations or contributions contemplated in subsection ( 1 )(c) for such purposes and in accordance with such conditions, if any, as are specified by the donor or contributor concerned, with the approval of the Minister.
(3) SLlbject to section 7 of the Public Finance Management Act, 1999 (Act No. 1 of 1999), the chief executive ofticer must open an account in the n~me of’ the Board with an institution registered as a bank in terms of the Banks Act, 1990 (Act No. 94 of 1990).
(4) The Board may invest any unspent part of the Board’s funds and use interest accrued on such investments to defray expenses in connection with the exercise of its powers and the performance of its functions and duties.
(5) The Board may, with the approval of the Minister and the Minister of Finance, authorise the establishment of such reserve funds and deposit such amounts therein as the Board deems necessary and desirable.
(6) The Board must in each financial year, m such time M determined by the Minister, submit a statement of the Board’s estimated income and expenditure for the following year to the Minister and the Minister of Fimmce for their approval.
(7) The Board must comply with the applicable provisions of the pub]ic Finance Management Act, 1999.
Loans
25. The Board may, with the Minister of Finance, raise money
Accounting
approval of the Minister, in consultation with the by way of a ~rant or loan.
26. Subject to [he pubiic Fintlnce Management Act. 1999, the Board is the JcXOLl[ltiIlg duthority.
26 No. 21755 GOVERNMENT GAZETTE, 17 NOVEMBER 200Q
Act No. 38,2000 CONSTRUCTION INDUSTRY DEVELOPMENT BOARD ACT, 200Q
Financial year of Board
~~. The Board’s financial year is from 1 April in any yearto31 March in the following year, but the first financial year is from the date of the coming into operation of this Act to 31 March of the following year.
CHAPTER SIX
GENERAL
The purpose of this chapter is to provide for legal procedures and general matters.
Restriction on use of name
28. No person may under a name containing the words “Construction Industry Development Board” or the translation thereof in any other o5cia1 language—
(a) conduct his oEher or its affairs or busiless or his, her or its occupation or trade; (b) falsely claim to be acting on behalf of the Board.
Enforcement
29. (1) The Board may, for the purposes of enforcing the code of conduct referred to in section 5, convene an inquiry into any breach of the code of conduct and must conduct the inquiry in the prescribed manner.
(2) The Board may— (a) (b)
(c)
Secrecy
subpoena any person to appear in person at an inquiry; subpoena any person to produce any documentation relevant to such an inquiry; and seize and make copies of the documentation produced in terms of paragraph (b).
30. (1) The chief executive officer, staff and all members ~f the Board may not disclose to any source, outside of the Board, information that may be considered confidential.
(2) Any person who breaches subsection (1) is subject to disciplinary action conducted in the prescribed manner.
Personal liability
31. A person is not liable in respect of anything done or omitted in good faith in the exercise of a power or the performance of a duty in terms of or by virtue of this Act or in respect of anything that may result therefrom.
Consultation
32. (1) The Minister must ensure appropriate consultation with other affected Ministers and Members of the Executive Councils with regard to the objects, powers, functions and duties of the Board.
(2) The consultation referred to in subsection (1) must include, but is not limited to— (a) the development and implementation of policy with regard to the construction
industry; (b) the determination of best practice priorities for the construction industry; (c) the Board’s business plan; and (d) issues raised by construction industry stakeholders.
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15
20
25
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Act No. 38,2000 CONSTRLJCTION INDUSTRY DEVELOPMENT BOARD ACT, 2000
Regulations
33. (1) The Minister may, by notice in the Gazette, make regulations not inconsistent with this Act with regard to any matter that is required or permitted to be prescribed. in terms of this Act and any other matter for the better execution of this Act or in relation to any power granted or function or duty imposed by this Act. 5
(2) The regulations may provide that any person who contravenes a regulation is guilty of an offence and liable on conviction to a fine not exceeding R1OO 000.
(3) Before the Minister makes any regulation under this section, he or she must publish a draft of the proposed regulation in the Gazette together with a notice calling on interested persons to comment, in writing, within a period stated in the notice, of not less 10 than 30 days from the date of publication of the notice.
(4) If the Minister alters the draft regulations, as a result of any comment, he or she need not publish those alterations before making the regulations.
(5) The Minister may, if circumstances necessitate the immediate publication of a regulation, publish that regulation without consultation as contemplated in subsection 15 (2).
Short title and commencement
34. This Act is called the Construction Industry Development Board Act, 2000, and comes into operation on a date fixed by the President by proclamation in the Gazette.