Open contracting in public procurement law: a theoretical investigation

Abstract

<p><em></em>Open contracting has been seen by many scholars as a relevant ideal for public procurement law, and much work in the academic literature has been conducted on this premise. Nevertheless, it seems that relatively little work has been done to investigate whether—and if so, the extent to which—this premise is theoretically sound. This article seeks to undertake this task. It asks: should open contracting be seen as a relevant ideal in public procurement law, and (if so) to what extent? Three propositions will be made. First, it will be contended that opening contracting should be seen as a general ideal for public procurement law. Second, it will be contended that although open contracting can be justifiably displaced by countervailing considerations, it represents a strong default position—which should in most cases be insisted upon in public procurement law. Third, a theoretical framework is provided to structure the balancing exercise—between open contracting and such countervailing considerations.​​​​​​​<em></em></p>