The State of Procurement: Overregulation versus reaching the procurement aims

Reaching procurement aims should be the most important thing for: contracting authorities, legislators and public officers. Failure to reach the aims of procurement leads directly to procurement crisis. The law should play the ancillary role for these aims. Unfortunatly what has been happening so far to legal regulation leads to oposite results.

The overregulation of law can be listed nowadays among many other reasons for public procurement crisis. The problem of overregulation can be seen both in the European Union legislation and in the domestic regulations. It can be observed, inter alia, in provisions conected with: innovative partnership, modification of the agreement or constrains for safe electronic signature. The direct cause of the increasing number of provisions conected with public procurement law comes from: the transfer of the main Court of Justice thesis directly to directives, as well as from the strong feeling of the EU legislator that law can and should regulate everything (…and even more). These mechanisms are shifted to the internal stage. The phenomenon of the overregulation can be dangerous and can lead to procurement crisis because of several reasons.

Firstly: the overregulation can lead to the loss of the real aims of public procurement. It is forgotten what the public procurement regulation was established for, since the crucial role is player by the literal interpretation of the very advanced legal provisions. In the practice of many countries the aim meaning has fallen to the further plan. The aims, such as: delivering the best quality products or services on a timely basis while maintaining the public trust and fulfilling policy objectives such as promoting small and medium business were lost because of increasing bureaucracy. This misfortune is often caused because of the intention to avoid negative results of the control. The supervising authorities in fact make the same mistake. They concentrate on the fulfiling of literal interpretation of the provisions. This is the reason of a vicious circle in this area.

Secondly: the overregulation leads to the weakness of the public sector creativity.

The commending believe sounds: "use mechanically the literal meaning and do not think about the aim. Procedure is the most important issue’’. The excessive approach of such provisions interpretation leads to the narrow analysis of the law. The aim of the legislator, which in fact is the widest possibile regulation of all possibile situation creates a negative result. There is no sense in regulating everything. Moreover it is Even not possibile to do this. Sometimes the path which is created by the provisions is to narrow for real life situation and as a result leads to inappriorate scores. A general clause itself can be sometimes better and more useful than very detailed explaination of its meaning. The general clauses were created for right – thinking people, also those from public sector.

Thirdly: the overregulation remains in conflict with the output of the law theory, particulary with the one conected with law interpretation. Not only Legal provisions create binding law but also jurisdiction itself, which help to understand the meaning of particular provisions. This was the underline objectives of the term: ,,acquis communautaire’’. The European Union legislator seems to forget about this crucial and very useful rule. Unfortunately the domestic legislators do the same.

The crisis of public procurement is a fact. The overregulation at the EU level has been already adopted and at the moment there is no chance to turn it back. But certain steps should be taken to minimalise the negative results of what happened. The contracting authorities should not forget about the aims of the regulation. The internal legislators should remember about the leaving the space for creativness for public officers. The market should permanently remind both above mentioned subjects what they have been created for.

Author: Prof. Michal Kania

Date: December 2016

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