Governance of Public Procurement in India: A Legal Analysis of the Procurement Policy, Scope of Judicial Review, and Approach of the Constitutional Courts towards Interpretation of Tender Documents

Abstract

Public procurement is one of the most vital aspects of governance in any country. In India, public procurement has to be made in compliance with the norms of the Constitution; as also in conformity with the statutory law, public policy, rules, regulations, authorised guidelines and manuals. If there is any violation of the principles of public law in the matter of award of contract by the public authority, then, such a decision will be subject to the judicial review of the writ court. At the same time, it is also correspondingly essential to confer the necessary leeway and pliability to the executive authorities so that they can discharge their constitutional and statutory duties towards the society and people efficiently and in a timely manner. Accordingly, the law envisages a fine balance to be struck between the “much-needed flexibility” and the “indispensable accountability” in the matter of public procurement. This, however, raises legal questions regarding the extent of the much-needed flexibility and the scope of judicial review in public procurement. Putting it differently, the legal inquiry to be made is in what matters of public procurement the court in the exercise of its writ jurisdiction, entertains a writ petition and also how the court interprets the tender documents for resolving the disputes so as to uphold the principles of probity and accountability in such matters. This paper, therefore, aims to address the following three specific research questions: (i) What is the law and policy governing public procurement in India? (ii) What is the current position of law regarding the scope of judicial review in public procurement? (iii) What are the principles and rules of interpretation of tender documents?