The Role of Administrative Law and Economics in Tempering Discretion and Balancing Conflicting Objectives in Public Procurement Decision Making

  • Muthomi Thiankolu University of Nairobi, School of Law
Keywords: Public Procurement, Economic Objectives, Social Objectives, Discretion, Corruption, Favouritism, Malfeasance, Law and Economics, Administrative Law

Abstract

The mandate of government is characterised by significant interdependence, complementarity and overlap between economic and social policy objectives. The pursuit of both economic and social objectives, therefore, is often necessary and inevitable in any system of public procurement regulation. The coexistence of economic and social objectives in a system of public procurement regulation, however, often results in conflicts and dilemmas. The conflicts and dilemmas occur when government bureaucrats make economically efficient but socially undesirable decisions or socially desirable but economically inefficient decisions. Moreover, public procurement laws often give government bureaucrats discretion to decide whether, the extent and the ends for which they can use procurement as a tool of economic or social policy. Although discretion is inevitable in any system of public procurement regulation, and public administration in general, it is also highly amenable to abuse. The disciplines of administrative law and economics offer useful conceptual tools that could be used to achieve an optimal balance or resolve conflicts between economic and social objectives in public procurement decision making. The disciplines of administrative law and economics offer useful conceptual tools for resolving the problem of discretion and its correlation with the incidence of corruption, favouritism and other forms of malfeasance in public procurement decision making. The two disciplines espouse a rule-based approach to public procurement regulation and decision making, characterised by circumscribed discretion and commitment to the values of competition, transparency and accountability

Author Biography

Muthomi Thiankolu, University of Nairobi, School of Law

Partner at Muthomi & Karanja Advocates and a Lecturer at the University of Nairobi School of Law. His research and practice interests are in dispute resolution, constitutional and administrative law, public procurement regulation and international economic law. Muthomi holds an LLM in International Economic Law (with distinction) from the University of Warwick; an LLB (Hons.) from the University of Nairobi and a Postgraduate Diploma from the Kenya School of Law

Published
2021-11-14