44 Pages Posted: 21 Jan 2004
At mid-20th century, U.S. reformers undertook to grow government through reliance upon contractors. The reformers understood that they were engaged in reform of Constitutional dimensions that would challenge the premise that officials should retain the capacity to supervise and evaluate the basic work of government. The reform yielded major successes, but the challenge to the premise of official control remained unaddressed. By consequence, the country never debated and developed a coherent framework - both of law and underlying cultural bedrock - for a world in which the presumption that officials have the ability to account for the work of government is no longer be valid.
In this context, the article discusses three competing Constitutional visions or models for holding contractors (and other third parties who perform the government's work) accountable. These visions are: (1) the presumption of regularity/rule of law/public law vision, which, as enshrined in current law and policy, presumes that officials have the experience and expertise to oversee and control government; (2) the governance/accountability vision which, reflecting operative bipartisan political consensus, presumes that public purposes are best performed by a mixture of state, market, and civil society actors and focuses not upon who does the public's work, but on fostering accountability for that work; and (3) the muddling through/common law vision, which accepts that rules of public law should apply to those who perform public tasks and applies them on an ad hoc basis. The article explains that each alternative vision has its strengths, yet each is suboptimal, and provides a roadmap for choosing between and among the alternative visions.
Keywords: Privatization, outsourcing, public procurement, administrative law
JEL Classification: L33, H57, K23, H42
Suggested Citation: Suggested Citation
Guttman, Dan, Governance by Contract: Constitutional Visions; Time for Reflection and Choice. Public Contract Law Journal, Vol. 33, No. 2, 2004. Available at SSRN: https://ssrn.com/abstract=488345