Regulating Complex Contracting: A Socio‐legal Study of Decision‐Making Under EU and UK law
| Published date | 01 March 2018 |
| Author | Eleanor Aspey,Richard Craven |
| DOI | http://doi.org/10.1111/1468-2230.12326 |
| Date | 01 March 2018 |
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THE
MODERN LAW REVIEW
Volume 81 March 2018 No. 2
Regulating Complex Contracting: A Socio-legal Study
of Decision-Making Under EU and UK law
Eleanor Aspey and Richard Craven∗
The article evaluates interview data on decision-making under public procurement law using
Halliday’s analytical model on compliance with administrative law. In this study, unlike other
studies on administrative compliance, the decisions faced by public bodies are not routine;
they relate to the award of complex, high-value contracts. Two contrasting decisions in the
procurement process are discussed: the decision over the choice of procedure at the outset
of the process, and the decision over the extent to which the public body should negotiate
with the winning bidder towards the end of the process. The article considers the rationales
behind decisions, and finds that, although public bodies are generally predisposed to comply,
legal uncertainty means the relevance of commercial pressures and challenge risk impact heav-
ily on approaches to compliance, even shaping understanding of what compliant behaviour
actually is.
INTRODUCTION
The private financing of public infrastructure (PFI) in the UK, not least under
the Private Finance Initiative, has been the subject of intense political and
academic scrutiny. Drawing on the literature on compliance with administrative
law, this article analyses empir ical findings on an aspect of PFI that has received
much less attention: the various factors influencing the decision-making of
procurement officers in light of the legal regulation of the tendering process.
This article utilises Halliday’s leading theoretical framework for understanding
administrative compliance to evaluate decision-making in the field of PFI
procurement.1This empirical study, situated in an area of administrative law –
public procurement – that is strikingly different to the welfare decision-making
∗Respectively, lecturer in law, University of Manchester and lecturer in law, University of Leicester.
This work was supported by the Economic and Social Research Council (ESRC). The authors
are indebted to the following individuals and organisations for making possible the PhD research
upon which the article is based: Sue Arrowsmith, David Fraser, Susie Smith and Bevan Brittan LLP,
Glen Fletcher and Achilles Information Ltd, and the ESRC. The authors also wish to thank Cosmo
Graham and Sarah Devaney for reading and providing feedback on drafts of the article. The authors
are also very grateful to two anonymous referees for their invaluable comments.
1 S. Halliday, Judicial Review and Compliance with Administrative Law (Oxford: Hart, 2004). Alter-
native theories are provided by R. Kagan, ‘The organisation of administrative justice systems:
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(2) MLR 191–221
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Regulating Complex Contracting
studied by Halliday, sheds new light on the way in which elements interact in
the decision-making environment.2In particular, here the market is especially
relevant and can, on occasion, apparently be pitted in direct opposition to
legality. The study thus provides insight into the circumstances when, in the face
of non-legal forces, like the market, legal compliance may gain or lose traction.
In addition, the article, in studying a regulatory regime heavily reliant upon
detailed transparency rules, adds to the literature concerning the limitations of
legal rules.3
Halliday’s analytical model, which, like this study, is rooted in extensive
empirical fieldwork, is attractive because of the way in which it accounts for
the complexity and fluidity of administrative decision-making. Halliday argues
that to understand administrative compliance we must appreciate three ele-
ments comprising the administrative realm.4The first of these refers to the
‘decision-makers’, and concerns decision-makers’ legal knowledge, legal con-
scientiousness and legal competence.5The second, ‘the decision-making envi-
ronment’, refers to a space where, to differing degrees, law converges/competes
with other normative – social, political and economic - influences.6The final
element, ‘the law’, concerns the clarity and consistency of the ‘message’ in legal
texts, court judgments, legislation etc.7Legal compliance will be enhanced the
clearer and more consistent this message is. Halliday pictures the above three
elements as continuums, upon which, to understand particular decisions, we
can place public bodies. Even subtle shifts in positioning on these continu-
ums may alter the dynamic between different elements, potentially affecting
compliance.8
In this article, the relevant legal regulation mostly derives from the UK’s
membership of the EU, which regulates procurement of goods, works and
services by public bodies – ‘contracting authorities’ - across member states in
view of the internal market.9The regulation removes trade bar riers, includ-
ing prohibiting national bias in procurement, and, supporting this objective,
the role of political mistrust’ and M. Hertogh, ‘Through the eyes of bureaucrats:how front-line
officials understand administrative justice’ both in M. Adler (ed), Administrative Law in Context
(Oxford: Hart, 2010) 172 and 217.
2 The ‘battle of the norms’ according to Julia Black in J. Black, ‘New institutionalism and
naturalism in socio-legal analysis: institutionalist approaches to regulatory decision making’
(1997) 19 Law & Policy 51, 54
3F.Schauer,Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in
Law and in Life (Oxford: OUP, 1991); W. Twining and D. Miers, HowtoDoThingswithRules
(Cambridge: CUP, 5th ed, 2010); R. Baldwin, ‘Why rules don’t work’ (1996) 53 MLR 321; J.
Black, Rules and Regulators (Oxford: OUP, 1997) 217-224.
4 Halliday, n 1 above, 32.
5ibid, 32 and 164.
6ibid, 33, ch 5 and 165.
7ibid, 34 and 165.
8ibid, 164.
9 See S. Arrowsmith, ‘The purpose of the EU procurement directives: ends, means and the
implications for national regulatory space for commercial and horizontal procurement policies’
(2012) 14 Cambridge Yearbook of European Legal Studies 1. In a public referendum on 23 June
2016, a majority of UK voters decided that the country should leave the EU, and on 29 March
2017 the UK government sought to commence the two-yearnegotiation per iod for leaving the
EU under Article 50 of the Treaty on European Union. It is not possible to say at this stage
what withdrawal from the EU will mean for the regulation of public procurement in the UK
192 C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(2) MLR 191–221
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