Earlier this year, I had some very interesting conversations with Bristol colleagues about the relationship between law, regulation, and the public interest. These conversations led to a series of blog posts that are being published in our Law School blog.
This prompted me to think a bit more in detail about how the public interest is articulated in public procurement law and policy. Eventually, I wrote this draft paper based on the review of procurement goals embedded in the UK’s new Procurement Act 2023, which will enter into force next month (on 28 October 2023).
I presented the paper at the SLS conference today (the slides are available here) and had some initial positive feedback. I am now sharing the full draft to see if it spurs broader discussion.
As always, comments warmly welcome: a.sanchez-graells@bristol.ac.uk. The paper can be freely downloaded from SSRN and its abstract is as follows:
In this paper, I explore the notion of public interest embedded in the Procurement Act 2023. I use this new piece of legislation as a contemporary example of the difficulty in designing a 'public interest centred' system of public procurement regulation. I show how a mix of explicit, referential, and implicit public interest objectives results in a situation where there are multiple sources of objectives contracting authorities need to consider in their decision-making, but there is no prioritisation of sources or objectives. I also show that, despite this proliferation of sources and objectives and due to the unavailability of effective means of judicial challenge or administrative oversight, contracting authorities retain almost unlimited discretion to shape the public interest and 'what it looks like' in relation to the award of each public contract. I conclude with a reflection the need to reconsider the ways in which public procurement can foster the public interest, in light of its limitations as a regulatory tool.
Sanchez-Graells, Albert, The Procurement Act 2023's Kaleidoscopic View of the Public Interest (August 02, 2024). Available at SSRN: https://ssrn.com/abstract=4945411.