Book Reviews

The Law of Public and Utilities Procurement, by Sue Arrowsmith, London, Sweet & Maxwell, 1996, ISBN 0-421-444-606, 1003 pages

The emergence of an open and liberalised global economy goes hand in hand with the elimination of protectionism favouring domestic suppliers of goods and services by public authorities, but also by publicly-licenses and regulated private bodies and, ultimately, by all procuring enterprises. In the modern corporate and government world, following privatisation, down-sizing and out-contracting, procurement has become much more economically important, as services and goods formerly produced in-house are now as a rule purchased from outside contractors. Much of any significant government bodys or private enterprises business consists now of procurement and contract management on one hand, and subsequent selling, marketing and direct service provision on the other hand. Procurement law has therefore become an important part of regulating government activities, both to increase the efficiency (and honesty) of public services, but also as an instrument aiming at opening up and creating an equal and competitive commercial playing field. This is occurring within the EC (with the direct application of primary EC law, but also by way of the key directives on public works and utilities procurement), but also globally within the context of GATT/WTO and mainly here through the revised and now much more specific General Procurement Agreement (GPA) effective as of 1996.

To explain the main features of EC and GATT/WTO/GPA procurement regimes and trace their implementation in UK law, but also "normal" UK procurement law applicable to public authorities, is the aim of this massive book. It starts with a general (and useful) discussion of government contracts in the UK, followed by a chapter on EC procurement policy, including policy develpments, the relevant articles of the EC Treaty (Art. 30, 52, 59, 6, 85, 86 and 90). Then follow about 300 pages on UK public sector regulations (with occasional references to EC law and the GATT/GPA rules). Utilities regulations are treated separately (pp. 382-573, again following the interaction of EC directives and implementing UK regulations). Chapters on EC rules on specification and UK compulsory competitive tendering rules follow. The treatment of suppliers from "third-countries" - complex under the influence of both GATT/WTO/GPA and EC law - in the UK and EC law is dealt with in chapter 15. The intriguing issues of using public procurement for social and industrial policies under EC and UK law are dealt with - though we found no reference to the previous UK policy to use oil and gas production licensing to encourage domestic sourcing under the OSO-memorandum. There is a separate chapter on defense procurement in the EC - with references to the EC Treaty and WTO implications. The last chapters deal with remedies and enforcement, first under EC law, then UK law, then WTO/GPA law and finally under UK national legislation. The massive text stops short of a conclusion.

This is a very impressive work by one of the UKs foremost procurement law specialists. It is not only relevant to UK procurement law (as influenced by EC and GATT/WTO/GPA law), but should have a wider constituency. The challenges GATT/WTO law will be felt by national legal regimes throughout the world, and the requirements to conform with EC law are not only relevant for EC members, but also for the countries aspiring to joint the European Union (often already obliged, by association agreements, to start a long march towards adapting EC law). Moreover, the model effect of the UK privatisation and deregulation will make most of the methods adapted for public-authority out-contracting and tendering of great interest for the re-organisation of governments towards a more "privatised" form of government throughout the world. The book has numerous relevant references, a meticulous analysis of detailed UK law and EC directives. It is regrettable that there is no bibliography; also, the immersion of the author into such a specialised and complex field has perhaps made her unaware that the uninitiated would benefit from a proper list of abbreviations. Access to the content of the book is somewhat hermetic: It is not quite clear to me if the structure of the book is really the best one. EC and GATT/WTO law show their faces many times throughout the book, and the mixing of these bodies of relevant law with UK government regulations is at times confusing to the non-expert user. There also seems to be a lot of repetition which must have contributed to the massive size of the book. It would be very desirable if the author tries to now focus on producing an abridged and concise version which avoids duplication.

There are also some matters of substance where we have not found full answers in this very heavy book: Corruption is mentioned shortly, but nowhere do we find a proper analysis of the impact of corruption on procurement contracts and their validity nor is reference made to the significant efforts of the US to universalise the US foreign corrupt practices legislation by way of a likely OECD anti-bribery treaty. Similarly, while the issue of the scope of procurement law is discussed at length and the issue of inclusion of specially privileged and licensed private enterprises is mentioned, there is no clear discussion of the application of the GATT/WTO/GPA treaties as well as EC law for independent subnational entities, autonous public bodies and private enterprises, an issue that is currently of great interest within the GATT/WTO fora. I also wonder if the author would not benefit from an effort to incorporate the modern concepts of economic analysis of law. For example, tendering/bidding is now core of procurement law. But tendering is inherently very inefficient since is forces - if there is no manipulation - several bidders to spend large resources on duplicative proposals. Does tendering - and much of the EC requirements now imposed - not in effect generate inefficient transaction costs? Are there ways of minimising such transaction costs which are different from the conventional GATT/GPA and EC approach? The possibly novel practice of creating longer-term alliance, partnering and network contracts to overcome the inefficiencies inherent in client-contractor-supplier relationships are barely mentioned. One wonders if much of the detail is really this necessary (even for a the look-up manual type which seems to have been the main idea for this book) and if more thinking could not have gone into these more modern challenges for conventional procurement law.

T. Wälde, CEPMLP/Dundee