Lessons from Across the Pond: Comparable Approaches to Balancing Contractual Efficiency and Accountability in the U.S. Bid Protest and European Procurement Review Systems
Public Contract Law Journal, Vol. 43, No. 1, 2013
28 Pages Posted: 20 Mar 2016
Date Written: May 30, 2013
This article compares the U.S. and European bid protest systems and their differing approaches to ensuring accountability in the contract formation process. The integrity of any public procurement system depends on the extent to which contractors and government authorities adhere to the system’s rules. Many procurement systems around the world have implemented procedures that allow unsuccessful tenderers (also known as “disappointed bidders” or “disappointed offerors”) to challenge procurements they believe were awarded unlawfully. Review procedures have been incorporated into numerous legal and regulatory frameworks, free trade agreements, and international procurement regimes, such as the Model Procurement Law of the United Nations Commission on International Trade Law (UNCITRAL) and the World Trade Organization’s (WTO) Agreement on Government Procurement (GPA).
This article offers an American perspective on recent trends in European procurement law by comparing Europe’s recent shift away from pacta sunt servanda with the United States’ whole-hearted adoption of terminations for convenience in the 1960s. Indeed, both Europe and the United States, while initially emphasizing different considerations, have now recognized the need to ensure the availability of effective bid protest remedies while still maintaining finality in the procurement system. While the methods used by the European Union and the United States may be different, this Article will demonstrate that both systems are attempting to balance the desire for contractual certainty with the need to hold contracting authorities accountable.
Keywords: public procurement, government contracts, bid protest, procurement review, efficiency, accountability, standstill
JEL Classification: K33, K23, K12, H57
Suggested Citation: Suggested Citation