Judicial review of government procurement: A study of contract as a public function

Procurement--that is, the purchase of goods and services from outside suppliers--is an important function of the government, which in Canada relies predominantly on the private market to obtain the goods and services it requires. Although it is a function which has for a long time been neglected by public lawyers, dismissed as a purely "private" or "business" activity, more recently increasing attention has been paid to it in recognition of the important concerns which it raises, relating both to the general public interest, and to the interest of individual suppliers.;This dissertation examines one question in this area which has still received relatively little detailed attention: the application to this activity of the administrative law of judicial review. This involves an examination both of the application to this function of the judge-made, or common law, review principles which apply generally to administrative activity--such as the principles of procedural fairness and the rule against bad faith--and also of the operation of judicial review in relation to the specific legislative provisions governing this area.;Although it is acknowledged that the courts may review procurement where there is a breach of express legislative requirements, and also that there are some limits on the objects for which contracts can be made, it is often assumed that this function is substantially immune from the common law review principles. This study identifies a number of considerations which have contributed to a general perception of contract as a "private" matter and, it is suggested, to this specific assumption that the procurement power is not reviewable. It is argued that these considerations often are not, however, relevant or persuasive in this context, and that this function is in principle reviewable on the same basis as other administrative powers.;However, there are also identified a number of more important and concrete considerations which have contributed to a reluctance to review: the danger of excessive interference by the judiciary with administrative politics; the potential problem of hardship to contractors whose agreements might be affected by a breach of public law; and the potential for disruption to the procurement process arising from litigation. The importance of these concerns is acknowledged. It is explained, however, that they cannot provide a justification for refusing to review procurement activity at all, but rather may adequately be dealt with in other ways.;The main body of this study is divided into three parts. Part One sets out some general information on government procurement in Canada by way of background to the legal analysis. This includes an introduction to the issues arising from this activity which may be of concern to the law of judicial review, and an outline of the legislative and administrative framework for dealing with these questions. Part Two then considers the application and role of the substantive common law principles of review in this area, paying particular attention to the limitations on judicial intervention. Part Three considers the consequences of a breach of public law rules for affected parties, whether of the legislative rules described in Part One, or the common law principles outlined in Part Two, and considers, in particular, how it is appropriate to deal with the potential problems of hardship to the other party to the contract and disruption to the procurement process.