The transactions carried out by the government of a country with the individuals or industrial, commercial or business organizations, domestic or international, for the purposes of sale, purchase, construction, acquisition of service, disposal of obsolete goods, etc., are called public contracts. In countries following civil law system these contracts are generally known as “contract administrative” or Marches Publics.
In the matters of contracts, some distinction is inevitable between the position of the State, whose main concern is the betterment of the society as a whole, and an individual who views his own benefit. There are special rules of procedure to be followed while selling to or buying from the government. Failure to comply with the prescribed formalities renders a contract unenforceable. Necessarily, the government must operate solely through representatives, who, unlike agents in private enterprises, lack supervising capacity motivated by personal profit incentive.
The government is not bound by an agreement unless the officer making it has express authority to enter into contracts on behalf of the government and has acted within the scope of this authority. The division of government functions results in one authority providing funds, another determining the manner of expenditure, and frequently, the third performing the actual purchasing while the user of such purchaser is the fourth authority.
The fifth authority supervises and controls the entire procurement activities of the procuring entities. The government reserves to itself a right to terminate the contract at any time without assigning any reasons. Procurement matters in some countries enjoy sovereign immunity against legal actions. Similarly, a longer period of limitation is available to the governments and public procurement entities for filing suits and other legal proceedings than available to ordinary persons or private business entities. In fact, some of these are the privileges enjoyed by the “governments or public authorities”.
Public procurement contracts are a very wide subject. Tremendous amount of administrative and legal literature is available on the subject of public contracts in the world and on various websites. A large number of books and articles have been written by various eminent authors on the subject. Further, literature on public contracts is country specific. Every country enters into a large number of public contracts every year and has laws, conditions, rules, books and other material on the subject of public contracts. Therefore, in this course an attempt has been made to inform the participants about some of the major principles of public procurement contracts.
At the end of the course, the participants should be able to:
- Describe the efforts made by various international institutions in the preparation of legal framework for public procurement;
- Identify the existing or required legal framework for public procurement in various countries;
- Analyze and make use of the process of pre-qualification of tenderers, the process of inviting tenders or bids;
- Explain the process of selection of the right tenderer for the procurement of goods or works and the making of the contract;
- Evaluate a given procedure for the performance of the procurement of contract; and
- Defend his/her chosen methods for the resolution of disputes in procurement contracts.
Content and Structure
The course consists of the following Lessons:
- Lesson 1 : Introduction
- Lesson 2 : International legal Framework I
- Lesson 3 : International Legal Framework II
- Lesson 4 : Domestic Legal Framework
- Lesson 5 : Tendering or Bidding Process
- Lesson 6 : Selection of the Supplier
- Lesson 7 : Making of the Contract
- Lesson 8 : Performance of the Contract - I
- Lesson 9 : Performance of the Contract II
- Lesson 10: Other Conditions
- Lesson 11: Conditions Specific to Works Contracts
- Lesson 12: Resolution of Disputes I
- Lesson 13: Resolution of Disputes II
In order to ensure the best possible outreach, the course will be delivered through e-learning. Through a multiple-instructional setting, the goal is to achieve the learning objectives by means of learning technologies that match personal learning styles and by the inclusion of non-linear learning that aims at the development of just-in-time skills of adult learners.
At the same time, in order to allow participants maximum flexibility of scheduling, the learning will be conducted in an asynchronous manner. Using a state-of-the-art training architecture, UNITAR will combine self-learning with assessments and online discussions. The pedagogy - adapted specifically to professionals in full-time work - will help train participants through various experiences: absorb (read); do (activity); interact (socialize); reflect (relate to one’s own reality).
The Course concentrates on the detailed methods and procedures of public procurement. Therefore, the government officials engaged in public procurement, of appropriate level, from the concerned ministries and departments, such as, Ministry of Procurement or Procurement Organizations, Ministry of Finance, Ministry of Justice, Ministry of Planning and Investment, Ministry of Foreign Affairs, senior and middle level officials of State-Owned enterprises who enter into foreign or domestic agreements for procurement of goods and works, representatives from the Law Faculties of the Universities who may be interested in national and international procurement, as well as all other organizations involved or concerned with the public procurement of goods and works and procurement management institutions will be benefited by this Course.
Representatives of trade and industry who enter into international and domestic agreements for providing goods and works to the Public Procurement Authorities worldwide will find the course very useful.
The Course proposes to provide specific information about public procurement policies and procedures. Therefore, policy analysts, decision makers as sell as government and private lawyers involved in drafting and negotiating procurement agreements will find the Course helpful and interesting.