Use of discretion by contract principal

Abstract

Contract administrator constantly faces the challenge of selecting the right procurement method in tandem with the basic need to achieve required performance in cost, time and quality. To achieve the required performance, tender process is carried out in which the contract administrator states the requirements starting from the notice of invitation to treat. There are rules and procedure to be complied with by the tenderers in the tendering process and the tenderer that best meet all the criterion would likely be awarded with the contract. However, what if the contract administrator deviates from rules and procedure and use his discretion in view of certain circumstances in the tender process. This study seeks to find the limit on the use of discretion by the principal, contract administrator or contracting authorities in general. The scope of this study is limited to the tender process. The methodology used involves several stages starting from initial study and concluded with a write up. The data from literature review and law cases are analyzed. From the relevant law cases, it appears that use of discretion is controlled by such principles as proportionality, equality of treatment, transparency, legitimate expectation and non-discrimination.