What Is Procurement?
"Procurement" is simply the buying of goods, services or construction, usually by a large organization, either in the public or private sector. In order to ensure that the organization is getting the best value for its money, it will use some form of competitive procurement process. The need to ensure that this process is fair, both to the buying organization and to those bidding in the process, has given rise to a range of rules and requirements. Procurement law looks at the way these rules are applied by the courts. Procurement lawyers advise both buyers and bidders in interpreting these rules.
Primary Sources of Procurement Law
In common law jurisdictions there are two primary sources of laws – statutes and other legislation on the one hand, and common law, developed by the courts, on the other.
Procurement Law in Europe
In Europe the European Union's directive on public procurement governs all procurement by public sector bodies. This directive contains detailed rules on the process to be followed and what the public sector may or may not do. There are no equivalent rules for the private sector and very few cases involving private sector procurement. A procurement lawyer in Europe therefore looks mostly to the Directive, or the laws that have applied it in the relevant country, such as the Public Contracts Regulations 2006 in the UK, and interprets those laws.
Procurement Law in Canada
In contrast, in Canada procurement law is mostly based on contract and has been developed by the courts. In essence, when a bidder submits a binding offer to a buying organization, a contract is formed between the bidder and the organization. The details of this contract and how it arises will be discussed in more detail in subsequent blogs. The Canadian courts have been active in implying terms into this contract in order to ensure fair and equal treatment for bidders.
What to Expect from This Blog
The Canadian legal framework for procurement is therefore sometimes difficult to identify. There are a number of leading cases that set out the principles, but the way in which these are applied can vary depending on the facts involved. This blog will explore the principles and look at specific cases as they arise to see how the law is developing. It will also provide suggestions as to how those procuring goods, services or construction can best run the procurement process and look at the options available to bidders who feel that the process has not been run properly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
