Feature Comment : Considering the Effects of Public Procurement Regulations on Competitive Markets

Professor Albert Sanchez Graells of the University of Hull (UK) recently published a vitally important book on procurement law, Public Procurement and the EU Competition Rules (Hart Publishing 2011). In his study, Sanchez Graells asked what seems like a simple question: Shouldn't regulators, when writing procurement regulations, consider the likely impact of those regulations on competitive markets? Sanchez Graells pointed out that far too little attention has been paid to the anticompetitive impact of public procurement regulation. This article assesses Sanchez Graells' thesis from a U.S. perspective. In many ways the U.S. federal procurement system stands at one end of a spectrum: Even when squarely addressing the intersection of procurement regulation and the commercial market, U.S. procurement regulators have not considered their rules' likely effects on competitive commercial markets. The article points out that this is in sharp contrast to the European Union's strong emphasis on using procurement rules to integrate a broader European market. The article notes that there is substantial legal authority in the United States for assessing, as part of the rulemaking process, the likely competitive impact of proposed procurement rules -- and that doing so could integrate the $500 billion federal procurement system much more efficiently into the commercial marketplace