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37 Pub. Cont. L.J. 269 (2007-2008)
Editor's Note: A Response to Omer Dekel's Legal Theory of Competitive Bidding

handle is hein.journals/pubclj37 and id is 277 raw text is: EDITOR'S NOTE: A RESPONSE TO OMER DEKEL'S LEGAL THEORY OF COMPETITWE BIDDING Christopher R. Yukins To begin, a note of thanks and celebration: Omer Dekel's Legal Theory of Competitive Bidding is a welcome addition to the literature of public procure- ment. His is one of this journal's first pieces to apply rigorous law-and-economics theory to public bidding. Although (as Dr. Dekel notes) many economists have delved into public procurement, very few legal theorists have turned the prob- ing beams of law and economics-and all the normative baggage the law brings with it-on public procurement law. That said, the purpose of this note is to address some minor quibbles with Dr. Dekel's piece. First, early in his piece, Dr. Dekel laments the sparse legal literature on the theory of the public tender. For those in the field, however, the literature seems rich-indeed, this journal and its sister jour- nal in the United Kingdom, the Public Procurement Law Review, are arguably dedicated to that theoretical inquiry. Although the technical debates in these pages may seem dryly practical, in fact each step forward in procurement reform-whether to encourage bids or negotiations, for example, or to pun- ish corruption or foster innovation-requires policymakers to weigh, some- times at a deeply intuitive level, many different theoretical models of public procurement. Thus, while the literature may not explicitly wrap itself around theoretical constructs, those in the field do recognize the norms at play as they craft solutions for the future, though those norms may go unstated and unexamined. Dr. Dekel's contribution, then, is to help bring those norms to the fore, in a wonderfully clear way. The second point is technical, but important. Dr. Dekel's piece argues that U.S. federal procurement law assures equality of treatment to bidders. Although that may be true as an aspirational matter, it is not the letter of the law. Section 1.102-2 of the Federal Acquisition Regulation is explicit that, while all contractors and prospective contractors shall be treated fairly and impartially, they need not be treated the same. In fact, many of the criti- cal issues in U.S. procurement law-whether bidders with very low rankings, for example, should have a right to challenge an award-flow from the core problem that bidders are not treated equally. Christopher R. Yukins is Associate Professor of Government Contracts Law and Co-Director of the Government Procurement Law Program at The George Washington University Law School. He serves as faculty advisor to the Public Contract Law Journal.

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