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

See all articles by Collin D. Swan

Collin D. Swan

George Washington University - Law School; Office of Suspension and Debarment, The World Bank

Date Written: May 30, 2013

Abstract

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

Swan, Collin D., Lessons from Across the Pond: Comparable Approaches to Balancing Contractual Efficiency and Accountability in the U.S. Bid Protest and European Procurement Review Systems (May 30, 2013). Public Contract Law Journal, Vol. 43, No. 1, 2013, Available at SSRN: https://ssrn.com/abstract=2750124

Collin D. Swan (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Office of Suspension and Debarment, The World Bank

1818 H Street, NW
Washington, DC 20433
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
45
Abstract Views
326
PlumX Metrics