National Land Transport Act, 2009 (Act No. 5 of 2009)RegulationsRegulations on Contracting for Public Transport Services5. Qualifications of tenderers |
| (1) | To qualify as a tenderer for a commercial service contract or a subsidised service contract, an operator and, where appropriate, any person or entity exercising ownership control over an operator, or performing services on behalf of, or in the capacity as agent of, an operator must comply with the following requirements: |
| (a) | The operator must conduct public transport operations according to business principles with financial ring fencing, or, in the case of a new operator, must have undertaken in writing to do so; and |
| (b) | must have his, her or its tax affairs in order and be able to furnish a valid tax clearance certificate issued by the South African Revenue Services. |
| (2) | For the purposes of subregulation (1)(a), an operator is financially ring fenced if— |
| (a) | the business of the operator's undertaking is conducted separately from that of another entity or undertaking or any other organisation; |
| (b) | the operator keeps separate accounting records, in accordance with generally recognised accounting practice and procedures, of its assets, liabilities, income, expenditure, profits and losses; |
| (c) | the operator's undertaking is financially sustainable in terms of its financial statements; and |
| (d) | the operator has no unfair advantage as regards access to financial or other support or resources from any organ of state, unless such advantage is part of a scheme which applies generally, approved by the contracting authority, to protect or advance public transport operators disadvantaged by unfair discrimination. |
| (3) | For the duration of a commercial service contract or subsidised service contract, an operator and, where appropriate, any person or entity exercising ownership control over an operator, or performing services on behalf of or in the capacity as agent of, an operator, must— |
| (a) | keep separate records, in accordance with generally recognised accounting practices and procedures, of his, her or its financial position, performance, flow of funds and change in financial position; |
| (b) | undergo an annual audit by a person registered in terms of the Auditing Profession Act, 2005 (Act No. 26 of 2005); |
| (c) | comply with the requirements of subregulation (1); |
| (b) | not enjoy an unfair advantage emanating from an organ of state, but any advantage emanating from a subsidised service contract is not deemed to be an unfair advantage for the purposes of this section. |
| (4) | For the purpose of this regulation— |
| (a) | "ownership control" means the ability to exercise or to influence substantially the exercise, of any of the financial and operating policies of an operator so as to obtain a benefit from its activities; and |
| (b) | "unfair advantage" means, but is not limited to— |
| (i) | the receipt by an operator of any direct or indirect benefit, including funds, resources, donations, grants, consideration or other advantage, whether financial or otherwise, which is not available on the same terms and conditions to all other potential operators; |
| (ii) | the direct or indirect guarantee or honouring of any of the obligations of the operator, including the arrangement or facilitation of the granting of any such loan; |
| (iii) | the direct or indirect provision of a loan bearing no interest, or interest at a substantially lower rate than would be available commercially to a similar operator under similar conditions, or a loan in respect of which interest payments are deferred for a period of more than six months, including the arrangement or facilitation of the granting of any such loan; |
| (iv) | allowing an operator to make use, or failing to prevent an operator from making use, of any public resources, including infrastructure, property, facilities, assets, human resources, systems, expertise or intellectual property, or facilitating such action, which would not be available to another similar operator on the same terms and conditions. |
| (5) | The contracting authority must consider the fitness of the tenderer as an operator in terms of such contracts based, among other things, on the latter's record of convictions for the following offences: |
| (a) | An offence created by the Act, the National Road Traffic Act or a provincial road traffic act; |
| (b) | an offence listed in Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977); |
| (c) | possession of an unlicensed firearm, explosives or a dangerous weapon; and |
| (d) | any other offence considered relevant by that authority. |