Anthony M. Potts (Yale University, Law School) has posted Broken Buying: Adversarial Legalism and (In)Efficiency in Public-Procurement Law on SSRN. Here is the abstract:
The United States confronts a government-capacity crisis-that is, it struggles to accomplish agreed-upon objectives in a reasonable timeframe and at a fair price. The government incapacity has prompted a public reassessment of the country’s core institutions and processes. Most legal scholarship on the topic concentrates on the federal level, but this Note is part of a growing trend that shifts the spotlight onto state and local governments. Procurement laws-and more specifically, competitive-bidding lawswhich determine how government contracts are awarded and to whom are central to the state and local capacity crisis. By tracing the history of the country’s competitive-bidding laws, this Note reveals how a broad vision of administrator discretion embodied in the laws as they existed at the country’s founding has drifted to a narrow vision that prevails today. This Note argues two forces are primarily responsible for the drift: adversarial legalism (i.e., complex, formal rules enforceable via litigation meant to check government discretion) and cost-based efficiency (i.e., requirements that government justify its actions in quantifiable, cost-cutting terms). The rollback the influence of both forces through statutory reforms that enshrine greater administrator discretion is necessary to reinvigorate government capacity. In a political moment defined by public frustration about government dysfunction, this Note offers a novel approach to unstick the government’s gears.