Non-traditional regular purchasing arrangements in public procurement : a doctrinal and comparative analysis of regulation and implementation systems

• Main Author: Filipon, Liviu Serban
• Published: University of Nottingham 2018
• Subjects: K Law (General)
• Online Access: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.765410

This research analyses, by using legal doctrinal and comparative methods, non-traditional regular purchasing arrangements (NTRPA) in seven public procurement systems carefully selected to ensure a wide coverage: the UNCITRAL Model Law on Public Procurement (2011), the World Bank, the US federal procurement system, the EU system and three EU Member States: UK, Romania and France. We define NTRPA as arrangements designed to meet on-going, recurrent or indefinite requirements for a long-term period through purchasing from the free market, and where the parties, at the initiative of the purchaser, go through a number of procedural stages (for example, 'suitability') and/or establish some contractual terms, but not all, in advance of the moment when an actual need for specific items arises, followed by placement of subsequent contracts or orders whenever the actual needs for items arise, based on the procedural stages conducted in advance, or based on the terms agreed beforehand. Such arrangements include, for example, framework agreements, dynamic purchasing systems and qualification systems (in the EU), and indefinite delivery contracts and multiple-award schedules (in the US). The varied terminology reflects the even wider variety of the arrangements themselves and of the approaches that legal instruments take in regulating them. The research examines how NTRPA are regulated in selected procurement systems, why they are regulated as they are, and assesses considerations that tend to promote or detract from fulfilment of certain objectives of the regulation of NTRPA. A common structure related to the 'core' elements of the underlying commercial process of such 'transactions' is used both for the examination of individual arrangements in each system and for wider comparative perspectives amongst them. By 'de-constructing' NTRPA as currently regulated into basic elements by reference to the 'core' commercial purchasing process, a corpus of guidance and a perspective are 're-constructed' regarding: (i) relevant landmarks for regulating NTRPA by reference to the particular objectives envisaged by individual procurement systems; and (ii) relevant landmarks for interpretation by practitioners, particularly from a teleological point of view, in areas where existing legislation or regulations applicable to their procurement systems are silent, inconsistent or unclear. 'Relevant landmarks' refer to aspects worth being considered in a wide context by policy makers, legislators or practitioners when introducing or reviewing public procurement regulation regarding NTRPA, or when actually implementing such arrangements. These landmarks do not refer to (and do not imply) a 'single recipe' for non-traditional regular purchases, but to an 'orientation guide' to quite complex a phenomenon.