The practical impact of E.U. public procurement law on PFI procurement practice in the United Kingdom

Braun, Peter (2001) The practical impact of E.U. public procurement law on PFI procurement practice in the United Kingdom. PhD thesis, University of Nottingham.

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Abstract

The emergence of Private Finance Initiative (PFI) in the 1990s has been described as the largest cultural change for decades in the way the public sector operates. PFI projects distinguish themselves from traditional methods of public purchasing by their commercial complexity and long contractual term. Most of these projects have to be delivered within the regulatory framework of public procurement which has remained largely unchanged since the 1970s.

The overall objective of the study has been to gain a complete picture of PFI practice in the light of the apparent divergence between the law and commercial requirements. It was aimed to investigate whether this divergence has brought about a "PFI procurement practice." If so, it was aimed to examine the reasons for the emergence of the practice and whether it deviated from procurement law.

To achieve these objectives, PFI practice was approached from an outsider and insider perspective. The perspective of insiders was gained by conducting a qualitative empirical study based on interviewing PFI experts. The outsider perspective was derived from legal analysis backed up by relevant material provided by interviewees.

The main conclusion of the study is that legal practitioners have adopted solutions in different PFI projects largely resembling each other. The resemblance justifies referring to them as PFI procurement practice. This, practice was found to be not always in compliance with a literal interpretation of procurement law.

Factors driving the divergence between law and practice include the perception of practitioners that strict compliance disproportionately hampers the commercially oriented PFI procurement practice. In addition, H. M. Treasury has increased the divergence by publishing guidance notes on PFI procurement which disregard procurement law in many respects. A further reason for the divergence is that private sector bidders have abstained from enforcing procurement law in the courts. In so doing, they have significantly reduced the risk of challenges for authorities developing PFI procurement practice.

Item Type:Thesis (PhD)
Supervisors:Arrowsmith, S.L.
Uncontrolled Keywords:Private finance initiative, Contracts law, Law enforcement, Prisons, Political science, Public administration
Faculties/Schools:UK Campuses > Faculty of Social Sciences, Law and Education > School of Law
ID Code:913
Deposited By:Janet Wharton
Deposited On:01 Oct 2009 15:29
Last Modified:01 Oct 2009 15:46

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