| Unit name | Public Contract Law |
|---|---|
| Unit code | LAWDM0114 |
| Credit points | 30 |
| Level of study | M/7 |
| Teaching block(s) |
Teaching Block 4 (weeks 1-24) |
| Unit director | Dr. Butler |
| Open unit status | Not open |
| Pre-requisites |
None |
| Co-requisites |
None |
| School/department | University of Bristol Law School |
| Faculty | Faculty of Social Sciences and Law |
Public contract law describes the regulation of the purchasing activities of governments and public and private utilities. Public contract law is intended to facilitate the achievement of value for money and competition through a set of dedicated procedures for the award of contracts which are aimed at reducing discrimination and improving equal treatment and transparency. In the EU alone, these contracts are worth approximately € 1.5-2 trillion annually. The importance of public contract law has grown exponentially in recent years. This is, in part, due to the changing nature of government purchasing practices (e.g. through politically contentious private finance initiatives and public private partnerships), a greater focus on accountability in public spend and an increasingly robust regulatory framework that has been improved by substantial modifications to enforcement procedures. As recently as 2013, the EU has proposed and adopted a substantive revision of the EU Directives as part of its public procurement modernization programme. Its increasing political significance is also recognized by the recent adoption of an EU Defence and Security Procurement Directive, the implications of which for Member States are unprecedented. Added to these developments, the EU is on the cusp of adopting a new Regulation on third country access to the EU public procurement market. The WTO Government Procurement Agreement and UNCITRAL Model Law are also undergoing specific revisions.
This unit explores the legal foundations, objectives and regulatory dynamics of public contract regulation. The provisional unit format (by seminar) will be as follows:
(1) Introduction to public procurement: objectives and functions
(2) Regulated procedures: open, restricted and negotiated tendering
(3) Specifications, publication, qualification and contract award
(4) Scope and coverage: thresholds and exceptions
(5) Group activity (reinforcing ILOs in seminars (1) - (4))
(6) Defence and security procurement
(7) Utilities procurement
(8) Secondary or “strategic” objectives in public procurement
(9) Private Finance Initiatives, Public Private Partnerships and Concessions
(10) Enforcement: Review and Remedies
(11) Revision and examination preparation/skills*
Intended Learning Outcomes The unit has both a substantial theoretical and doctrinal content and which is specifically reflected in the discrete learning outcomes intended for the unit. The intended learning outcomes are as follows:
1. To identify the primary objectives, functions and principles of public contracts and to relate them to the underlying and broader social, political and economic context(s) in global perspective; 2. To critically examine the regulatory framework applicable to public contracts, with particular reference to those objectives, functions and principles identified above and with comprehension of their discrete sectoral application; 3. To analyse the substantial jurisprudence on issues of public procurement, in particular, with reference to the development of free-standing EU procurement “principles”; 4. To evaluate the extent to which international public contract law regimes achieve so-called secondary or strategic objectives
The unit is specifically designed to offer a structured programme of study in which each seminar builds on the acquired skills and competences of the former. It commences with a distillation of the core underlying objectives, functions and principles which underlie public contracts. In this regard, students should be able to critically engage with the theoretical foundations of the discipline and which inform the doctrinal analysis of the rules in subsequent seminars. Later seminars will examine the substantive content of the rules and their judicial interpretation. Students will have opportunity to undertake problem-based assessments of the legal principles and their practical application and enforcement. Additional seminars broaden the field of enquiry to assess the wider significance of public procurement e.g. in the field of defence and security and the instrumental use of public contracting to achieve secondary objectives. By the end of the unit, students should have a thorough understanding of the theoretical and practical scope of public contract law and the ability to evaluate critically the operation of this law and to make a comparative judgements between different legal systems.
This unit will be taught primarily by means of seminars. In addition to the seminar reading and question sheet, each seminar will incorporate a written outline (power point slides) identifying the core components of each seminar. I will also deliver substantive lectures on content where necessary. The unit will incorporate at least one form of student presentation and peer/tutor assessed group work (focused on an application of the procurement rules to a fictional procurement exercise engaging contracting authority and contractor perspectives on the legal issues). There will also be opportunity to undertake formative assessment in accordance with Law School requirements.
Formative assessment will comprise either one or two written essay and/or problem questions in accordance with the Law School’s specification. Summative assessment will comprise one three hour examination (100%) comprised of problem questions and essays on each discrete topic covered in seminars
Core reading • C H Bovis, EU Public Procurement Law (2nd edition 2012) (Edward Elgar) (available in electronic version in the library); the first edition is also available in hard copy in the library; • S Arrowsmith and R D Anderson (ed.) The WTO Regime on Government Procurement: Challenge and Reform (2011 CUP) (available in electronic version in the library)
References • P Trepte: Regulating Procurement: understanding the ends and means of public procurement regulation (OUP 2004) (available in hard copy in the library) • S Arrowsmith and S Treumer, Competitive Dialogue in EU Procurement (eds.) (2012 CUP) (available in electronic version in the library) • C McCrudden, Buying Social Justice: Equality, Government Procurement, and Legal Change (OUP 2007) (available in hard copy in the library); • S Arrowsmith and P Kunzlick, Social and Environmental Policies in EC Procurement Law: New Directives and New Directions (2009 CUP) (available in electronic version in the library) • Public Procurement Law Review and European Procurement & Public Private Partnership Law Review (all major journals in the field are currently available through our existing online subscription)
