The State of Judicial Scrutiny of Public Contracting in New Zealand and Canada (original) (raw)
Related papers
Court Decisions in Public Procurement: Delineating the Grey Zone
Scandinavian studies in law, 2008
To remain effective within the public procurement proc-ess it is important to avoid revisions on contract award deci-sions, which prolong the procurement process and takes its toll on public resources. This paper aims to delineate the grey zone within public procurement legislation and clarify how the court interprets it, which will aid procurement officers in achieving best practice. Findings indicate a bias in favour of the procuring authority in terms of outcome of the court deci-sions through the use of a principle allowing for imperfect Re-quest for Tender (RFT) and evaluation models due to fluctua-tions in the economic sector. The findings show that some of the most litigious issues are flawed RFT, inconsistent RFT and award evaluation and a lack of clarity in the RFT and/or the procurement process.
Anomalies in Public Procurement Law
Although through Public Law mechanisms the courts typically control the exercise of executive discretion and impose on office-holders duties of considerate decision-making, courts, in the absence of statutory underpinning, have nonetheless been reluctant to intervene in public procurement decisions on the basis that there is an insufficient public law element in them. At the same time, recent developments in the Private Law of contract have established that once a decision is taken to engage members of the public in a bidding exercise on express terms and conditions the purchaser, in certain circumstances, would be held bound to duties of considerate decision-making. In this paper, the impact of the Trinidad and Tobago Judicial Review Act 2000 on the common law regime for administrative relief is considered. I suggest that continued judicial preoccupation with seeking a sufficient public law element over and above the statutory jurisdiction to review is wrong and such approaches compromise our ability to develop the jurisprudence in a way which meets the new demands in public sector management.
Public Procurement in Law and Practice1
2020
We examine a new data set of laws and practices governing public procurement, as well as procurement outcomes, in 187 countries. We measure regulation as restrictions on discretion of the procuring agents. We find that laws and practices are highly correlated with each other across countries, better practices are correlated with better outcomes, but laws themselves are not correlated with outcomes. To shed light on this puzzle, we present a model of procurement in which both regulation and public sector capacity determine the efficiency of procurement. In the model, regulation is effective in countries with low public sector capacity, and detrimental in countries with high public sector capacity because it inhibits the socially optimal exercise of discretion. We find evidence broadly consistent with this prediction: regulation of procurement improves outcomes, but only in countries with low public sector capacity. 1 The authors are from the World Bank, the Peterson Institute for Int...
Appeal of Public Procurement Procedures
International conference KNOWLEDGE-BASED ORGANIZATION, 2019
Public Procurement is an important element of the Internal Market and a basic method of public spending and ensuring the free movement of goods, services and works by domestic and foreign companies. Through the adoption and implementation in the national legislation of the Member States of a package of Directives 2014, a new Public Procurement regime is settled. The purpose of the new Directives is to exclude the risk of giving national tenderers an advantage. There are a number of issues, including the kind of legal protection contractors can expect in Public Procurement procedures. This article analyses one of the mechanisms for controlling Public Procurement - their appeal. It relates to the judicial control exercised by the relevant national institutions in the Member States and the conditions and procedures for appeal that are governed by the national laws, once the Directives have been transposed into national legal systems. Despite a limited number of cases, the Court of Just...
Particularities of the Public Procurement Contentious
Abstract: The paper with the above mentioned title approaches an issue current not only for juridical research, but also for practical activities. This study resumes an issue approached by other authors as well, but highlighting some particulars of the contentious business of public acquisitions using analysis, observation and case study. Thus, based on the regulations prior to coming into force of the Emergency Ordinance no. 34/2006, I have performed a brief analysis of the means available to the individuals who wish to challenge the legality of a procedure of awarding the public procurement contract. At the same time, in this study we aim at clarifying the aspects related to the legal nature of the documents prior to concluding the public procurement contracts used by the contracting authority and also the legal conditions applicable to public procurement contracts concluded following the awarding procedure.
Rule of Law Assessment - Case Study of Public Procurement
EJTS European Journal of Transformation Studies, 2019
This article deals with the concept of Rule of Law in the process of public procurement. Authors analyse various aspects of the topic from the various points of view. The research is focused on finding, whether and how the rule of law is applied in the process of public procurement, and what are the consequences for its breach.
South African Law Journal, 2020
Flowing from the constitutional imprimatur in s 172(1) to further ‘justice and equity’ (‘J&E’), the courts have made important strides in developing a framework for remedying irregular public procurement. They have not, however, done so clearly and coherently; nor in a way that encourages predictability in remedial outcomes. In response, we have sought to leverage an argument for ‘reasonable certainty’ as a rule-of-law justification for refining the framework in a comprehensive and helpful way that does not pit form against ‘individualised justice’. We have done so against the backdrop of two hypothetical tender scenarios — a review by a private contractor and a state self-review — based upon a pattern emerging from the jurisprudence. Through our analysis, we illustrate that ultimately the J&E enquiry is a kind of proportionality assessment that has, at its heart, an appreciation of the overall ‘impact’ of setting a tender aside, from both a practical and principled perspective. We posit a two-step approach to addressing this overarching ‘impact question’: a big-picture assessment of the various interests to be weighed in the balance, followed by the particularised balancing of these affected interests with reference to several open-list factors. Ultimately, we seek to provide a principled and pragmatic guide for the exercise of the courts’ remedial discretion and so draw the analysis together by applying this framework to the scenarios sketched.
Judicial interpretation of the notion of ‘grave professional misconduct’ in public procurement
2017
Public Procurement Law is the acquisition of goods, works and services by a contracting authority through the use of a public contract. The general principles of Public Procurement Law dictate that suppliers are treated fairly and without discrimination whilst encouraging transparency, proportionality, competition and free trade within the member states. This area of law is mainly regulated by the EU through the use of Directives and their national equivalent, judge - made law from the Court of Justice of the European Union (‘CJEU’) and national courts. Due to the substantial amount involved throughout the life cycle of the public contract (including the contract value), it is paramount that the contract is awarded to the right supplier in order to attain value for money. As such, unqualified suppliers should be eliminated from the procurement exercise. Art.57 (4) (c) of Directive 2014/24/EU and reg. 57 (8) (c) of the UK Public Contracts Regulation 2015 (PCR 2015) specifies that a c...