The Procurement Act 2023’s Kaleidoscopic View of the Public Interest

In this paper, I explore the notion of public interest embedded in the Procurement Act 2023. I use this new piece of post-Brexit legislation as a contemporary example of the difficulty in designing a ‘public interest centred’ system of public procurement regulation. I show how a mix of partly overlapping explicit, referential, and implicit public interest goals results in a situation where there are multiple sources of objectives contracting authorities need to consider in their decision-making, but there is no prioritisation of sources or objectives. I also show that, despite this kaleidoscopic proliferation of sources and objectives, and due to the unavailability of effective means of judicial challenge or administrative oversight, contracting authorities retain almost unlimited discretion to shape the public interest and ‘what it looks like’ in relation to the award of each public contract. This challenges the centralised approach to procurement policy taken by recent and current UK Governments and, in particular, raises significant questions on the likely effectiveness of ‘mission-driven’ procurement. I close with a call to reconsider how public procurement can foster the public interest, in light of its limitations as a regulatory tool.