A critical review of the remedies available under the domestic public procurement regime in the light of EU developments

Abstract

This study seeks to undertake a critical review of the remedies available under the domestic public procurement regime. On undertaking this review the author was constantly guided by the following research question: To what extent are domestic remedies capable of enabling effective review of decisions taken by contracting authorities? As it transpires there are various aspects relating to domestic remedies that can potentially inhibit the effective review of decisions. On the other hand, the timely review by the Court of Appeal (Superior Jurisdiction) appears conducive to an effective review. The following lists the most salient features of this study’s findings: a) The remedies competence inherent in the office of the Director of Contracts does not appear to be fully conducive to effective review of the decisions taken by contracting authorities; b) The remedies competence inherent in the Public Contracts Review Board does not appear to be fully conducive to effective review of the decisions taken by contracting authorities; c) For the sake of legal specificity, clarity and predictability the usage of explicit legal provisions are more desirable and thus consistent with better law making; d) Although timely decisions by the Court of Appeal are enabling effective review of the decisions taken by contracting authorities, the right of the parties to an effective remedy can potentially be better improved if cases undergo a more robust review at first instance stage; e) Legislative intervention at domestic and/or European level is desirable in order to ensure that an appropriate balance is struck between the free access to information and the protection of commercially sensitive data; f) The current system where recourse is directly made to quasi-judicial bodies rather than having to resort to pre-judicial remedies enables more efficient review and hence should be maintained. Further to the above findings, the author humbly puts forth legislative recommendations in an attempt to contribute towards better governance in the domestic public procurement regime, especially within the realm of remedies.