Why the "public" in public procurement matters

And the courts need to say who should enforce the "public" element of public procurement, if not pressure groups

Public procurement is an important area of law and policy, but it is one that is dull and technical.

But before you glaze over and scroll on think for a second about the word “public” and what that means in the phrase “public procurement”.

Procurement, in and of itself, is about buying and selling.

And subject to certain general laws, you and others can buy and sell as you wish.

There is no duty on you to obtain anything value for money or for you to advertise what you want or for you treat potential suppliers they same as long as possible.

You can make as prudent or as imprudent a purchase as you wish.

The disappointed supplier will have no legal remedy against you for any imprudence.

But.

With public authorities the law and policy is different.

Public authorities cannot buy as they wish.

This is because public authorities are under distinct and special laws for “public” procurement.

This means that potential contract should be advertised and that there should be a transparent bidding process; the contract award criteria must be objective; and there should be no preferential treatment for incumbents or well-connected suppliers; and the contracts should be awarded on the basis of not of the best price then on the basis of value for money.

This is the difference between procurement and public procurement.

Public procurement is, or should be, about serving the public interest, as well as the private interest of the procuring authority.

At least, that is the theory and the supposed best practice.

The question is then who should enforce these special duties?

Under the public procurement law of the European Union, the duties could be enforced (at a high level) by the European Commission or by disappointed tenderers.

Of course: disappointed tenderers have private interests and so they will only be minded to enforce any special duty if it coincides with their selfish concern.

But now that the United Kingdom has departed from the European Union the question becomes who will enforce the “public” part of public procurement law?

The courts have become wary of campaign groups saying they have “standing” to bring any challenge.

The courts may or may not have a point.

They may or may not be right to be pushing back against such litigation.

But if not such groups, then who?

If standing is limited to disappointed tenderers then there will be few challenges.

And as was averred in an earlier blogpost, the “public” element of the law of public procurement becomes a polite fiction.

Laws and legal standards that are impractical to actually enforce soon become redundant.

The courts thereby have a challenge: if the the “public” element of the law of public procurement cannot be enforced by pressure and campaign groups, then who should enforce it?

Else public procurement merely becomes another form of private procurement, by another name.