Objectives

The primary objective of this tender is to procure an independent, highly experienced external legal firm to deliver a comprehensive legal opinion and strategic advisory services concerning intellectual property-related contracts. The engagement aims to ensure strict compliance with South African legislation, protect SARAO’s proprietary know-how, and establish robust governance and risk-management frameworks for public-private technology transfer transactions.

Scope of Work

The appointed specialist will conduct a multidisciplinary review of proposed transactions, encompassing:

• PFMA & Corporate Governance: Analyse equity disposal/acquisition rules, identify mandatory notification thresholds, and determine compliant asset-holding structures for public entities.
• IPR Act & Statutory Compliance: Evaluate founder alignment with institutional IP policies, draft enforceable waivers to prevent dual benefit claims, and secure perpetual, royalty-free public-research usage rights.
• Fiduciary Duties & Conflict Management: Assess dual-role exposures, apply corporate opportunity doctrines, and draft transparent disclosure forms and recusal protocols.
• Regulatory & Financial Analysis: Apply competition law, evaluate tax/VAT implications of non-monetary consideration, and assess broader statutory impacts.
• Deliverables: A comprehensive legal opinion, IP valuation methodology assessment, and structured contract vetting for collaboration agreements.

Technical Requirements

Bidders must satisfy mandatory administrative submissions and achieve minimum scoring thresholds across three evaluation phases:

• Administrative Compliance: Submit signed SBD 1, 3.1, 4, and 6.1 forms, along with valid BBBEE documentation or sworn affidavits.
• Functionality Criteria (Go/No-Go): Provide named responsible personnel, relevant tertiary qualifications, valid legal practitioner registration, at least three recent client testimonials, demonstrated knowledge of PFMA Section 54 and the IPR Act, and a capacity commitment letter.
• Capability & Capacity (Phase 2.1): Score a minimum of 13 out of 20 points by demonstrating completed public sector projects in commercial advisory, PFMA compliance, or IP commercialisation, alongside lead resource qualifications and post-qualification experience.
• Technical Proposal (Phase 2.2): Score a minimum of 36 out of 44 points by presenting a detailed execution strategy, work breakdown structure, communication model, and robust methodologies across six statutory/legal domains, including quality control, confidentiality protocols, and advanced contract drafting techniques.

Skills Requirements

Service providers must demonstrate specialized expertise in:

• Commercial, corporate, and public administrative law with strong IP law proficiency.
• In-depth application of the PFMA, IPR Act, Competition Act, and relevant tax/VAT regulations.
• Experience managing public sector technology transfers, IP valuation frameworks, and conflict-of-interest structuring.
• Advanced legal drafting, risk management, and strategic advisory capabilities tailored to publicly funded research institutions.

Explanation of Complex Terms & Services

• PFMA Section 54 & Schedule 3A: Legislation governing state-owned entities’ material asset acquisitions, disposals, and equity holdings, requiring specific National Treasury approvals to ensure fiscal responsibility.
• IPR Act: Mandates that intellectual property developed using public funding remains accessible for public benefit, dictating ownership, licensing, and benefit-sharing arrangements.
• Double-Dipping Waiver: A legal instrument preventing founders from simultaneously claiming private shareholder profits and public-sector employee IP creator entitlements.
• Right to Use (RTU) Rights: Perpetual, irrevocable, royalty-free licenses granting SARAO unrestricted access to IP for non-commercial and public research purposes.
• Non-Monetary Consideration: Transactions where proprietary know-how or IP replaces cash as payment, triggering complex valuations and tax/competition law assessments.