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Tuesday, August 10, 2010

More on the importance of planning, purposes and policies

This is a bit of a knock-on from a post I put up last week regarding the practical effect of procurement purposes and policies.

In my Guam Procurement Process Primer, after explaining where and how to find the laws and rules of Guam procurement, I begin the substantive topics of procurement law with a discussion of procurement policies and purposes. I try to make the point that it is error and folly to overlook these fundamental aspects.
The law and regulations specify certain purposes or policies of procurement law. These are not mere maxims, platitudes and ideals. They are intended to fill in the blanks and provide direction when the law or regulations have holes or are in need of clarification or direction.

This point is illustrated quite aptly in the following article by lawyer George Wheeler-Carmichael of the UK offices of lawfirm Nabarro LLP.

Most of the article is taken up in a discussion of what the author terms the "pre-procurement stages" of procurement under EU and UK law more particularly. The pertinent part, for this post, is this comment, at the beginning of the piece:
There are many things that can (and should) be done to prepare for the procurement, including market testing. But how far can you go?

There is very little law on this. European procurement rules are silent. The only guidance is in the three general principles of procurement law:

* equal treatment
* non-discrimination
* transparency

As long as market testing is carried out in a way which treats all participants equally, does not discriminate (and this includes inviting a wide range of organisations to participate in the first place) and ensures that the same information is given to all, then there should be no problem.

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