When it comes to buying, EC and U.S. are not so different

One way is to compare the government's procurement process with that of other
countries. A case in point is the European Community, which strives to expand access to
the government markets of its member countries.


The book EC Public Procurement Law by Christopher Bovis presents a good outline of the
EC's efforts. The author, director of a British institute on European law, traces the EC's
attempts to create a truly common market for government procurements.


One problem faced by the EC is the tendency of member countries to award contracts to
their own nationals. To defeat this prejudice, the EC relies on three principles:


The principles will be familiar to anyone versed in our own Competition in Contracting
Act.


Member states must implement the EC directives, but not every country does so
diligently.


And there are many problems, according to Bovis.


For example, procurement officials ignore or don't know the EC rules. Some agencies use
multiple contracts to avoid monetary thresholds. There is excessive use of sole-source
contracting and restrictive technical specifications. Agencies apply the award criteria
unevenly or not at all. Small and midsize companies win few contracts.


To foster better compliance, the EC is working to develop an adequate but balanced
enforcement mechanism.


Disappointed bidders or their governments have the right to object to unlawful conduct.
EC protest law, however, is still embryonic.


The member states are debating crucial issues:


Bovis' study ends on a pessimistic note. He found that most public contracts are
awarded without recourse to EC directives.


EC procurement directives must address a different legal and government tradition and
must reflect the broad spectrum of procurement systems in member countries.


There are similarities between the EC buying process and U.S. government acquisitions.
Many problems and attempts at solutions are the same. Perhaps we have more to learn from
each other than we suspect.


Joseph J. Petrillo is a lawyer with Petrillo & Associates in Washington. The
columnist adds a thanks to lawyer Alan V. Washburn for bringing the Bovis book to his
attention.


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