The Black Business Council may take the government to the Constitutional Court over a procurement process it believes to be unfair, spokesman Sandile Zungu said on Monday.
“We are quite keen to test... are set asides unconstitutional when the Constitution allows affirmative action? It doesn't make any sense,” BBC secretary Zungu said in Johannesburg.
“Set asides” refers to a certain category of work in a government contract being set aside for specific group, for example women, or blacks.
“Set asides is basically saying this volume of work will be left for this category of people,” Zungu said.
However, the National Treasury has said set asides are unconstitutional.
“They said specifically it would be unconstitutional. They... will not base their procurement practices on the standards of set asides, so we have to test that.”
Zungu said Treasury believed anyone should be able to apply for a contract, and if one could fulfil the price, one could do the work.
This meant the state's buying power was not being used to transform the economy.
“We are saying trust in local players, and give local players a chance, and if they can't do the work, because they have capacity limitations, they must go and look for their own subcontractors."
He was speaking on the sidelines of an African National Congress and BBC meeting on the discussion documents on economic transformation, to be debated at the ANC's policy conference later in the month.
Zungu said the decision whether to take the issue to the Constitutional Court would depend on the outcome of the BBC's policy discussions.
Zungu recently challenged the Passenger Rail Agency of SA (Prasa) about its approach to black economic empowerment.
Prasa had said it would choose BEE partners for the companies that won contracts to supply it with new coaches, Business Day reported last week. This was to try and ensure black partners were not chosen for their political connections or used in fronting scams.
Zungu reportedly said this suggested that black businesses "must wait until a suitable foreign contractor has been selected (and) is tantamount to saying black people have no role to play, and therefore no value to add, in (the) bid stages' technical and financial work. It is dangerous in the extreme as it feeds into the stereotype that BEE is about handouts".