This study contributes to the legal scholarship examining government procurement predominantly from a public law perspective. The study seeks to investigate the role of public law in government procurement, without discounting the important function of private law in addressing issues of government procurement. This study proceeds on the basis that public and private law will apply concurrently to government procurement. The jurisdictions examined are Malaysia, Australia (Commonwealth and States/Territories) and Singapore, with special emphasis on Malaysia.
This study argues that public law has a significant role to play in reform of government procurement in Malaysia. The reasons why public law is of such potential importance can be summarised as follows:
First, procurement power and regulation of government procurement are largely under the control of the Malaysian Treasury, part of the executive government that attempts to govern procurement by way of non-legislative instruments. To have this important area of executive government action outside of any legal scrutiny would undermine Malaysia’s efforts to increase respect for the rule of law.
Second, the legislature (the Malaysian Parliament) has enshrined public law standards for procurement through the enactment of finance legislation. This legislation undermines the claim that procurement is entirely a private activity of the government. Furthermore, because government procurement utilises public funds, the appropriation of these funds is subject to legislative control which restricts the potential of arbitrary exercises of government power. Judicial enforcement of public law standards has the potential to further restrict arbitrary exercises of government power.
Third, international pressure deriving from multilateral institutions, regional arrangements and bilateral trade treaties to regularise government procurement compels Malaysia to provide legal remedies for international bidders in line with other states. This study argues that cross country comparison with Australia and Singapore can help Malaysia to assess its own system and its future development, specifically the interpretation and operation of multilateral and bilateral trade treaties signed by both states in respect of challenge rules in government procurement.
By focussing on remedies in procurement challenge procedures (specifically remedies requiring the preservation of commercial opportunities for bidders in procurement) this study argues that public law remedies can reconcile executive decisions based on policy objectives and rules contained in trade treaties that require bid challenge procedures. Although this study recognises that government procurement is carried out by contractual arrangements with successful bidders that are governed by private law, public law can simultaneously have a role in overseeing the entire operation of government procurement: from the legal source of power to procure; the observation of public law obligations including affording natural justice and ensuring the legality of decisions; and to granting procedural fair treatment to all participating bidders in a procurement tender exercise.