Barreto-Cifuentes, Carlos Sebastian
(2022)
Alteration of public contracts and its interface with public procurement objectives: a comparative analysis.
PhD thesis, University of Nottingham.
Abstract
The law of alterations of public contracts was for some time a matter reserved for national contract law. Thus, countries regulated the area via private contract law or administrative law, depending on their traditions, and procurement concerns were not especially observed as important in the area. However, the “expansionary” nature of procurement has arrived at these shores and national and international objectives in public procurement are now closely regarded in the law of alterations of public contracts. This has occurred, as demonstrated in this thesis, in a reactive manner, and generally based on a case-by-case evolution that is not always orderly. This reactive and case-by-case expansion has created scattered and not necessarily orderly/systematised rules in some of the analysed regulatory frameworks. Scholarly presents similar features.
Moreover, the emerging rules and preoccupations are not a nascent field in new soil but a new seed in old soil: contract law, traditions, and different approaches to the very understanding of law. Therefore, it is important to have a “conversational” approach that aims to present the procurement concerns without overlooking traditions in the field.
This study presents, analyses, and systematises the law of alterations of public contracts in three national jurisdictions and five international regulatory frameworks with the purpose of critically and comparatively analysing the rules applicable to contract alterations as well as their rationales; contribute to the understanding of the law applicable to contract alterations in several national jurisdictions and regulatory frameworks in a comparative manner, and inform the assessment of national and international regulators when deciding whether and how to regulate public contract alterations.
The thesis presents and analyses the law on alterations in the EU, the OECD instruments, the World Bank, the UNCITRAL instruments, the GPA, and the UK, France, and the US. On that basis, it was found that: all these systems deal, in different manners, with alterations of public contracts; similar concepts and ideas in this area are shared in several analysed systems; most analysed systems limit alterations due to procurement concerns and do so in similar fashions, and even wordings and test have similitudes; and it was concluded, hopefully not hastily, that the law of alterations of public contracts is not, anymore, exclusively a creature of contract law. It has become a field where procurement concerns are on the rise and clash between them and pre-existing national contract law and traditions. Those interests must be balanced. The precise manner of doing so requires further research, including data. Nonetheless, some factors to consider were found and systematised throughout this thesis.
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