Public Law Remedies In Government Procurement: Perspective From Malaysia

Abstract

Government procurement refers to a government entity contracting to purchase goods and services from commercial supplier for the consumption of the government itself. Due to the public nature of government, procurement rules and processes based on public law principles are applicable to such purchasing. The adoption of public law affecting government procurement has been recognized in other jurisdictions such as Singapore, India, Australia and United Kingdom. Furthermore, the legal jurisprudence in Malaysia on government’s power to contract is restricted to private law has failed to provide legal remedies in government contracting. Public law has no place in government procurement as the court only recognizes the parties privy to the contract and not allowing any other party to challenge the contract. The paper examines the current public law remedies in government procurement available in Malaysia. The analysis is based on the statutory laws and available court cases on the issue of public law principles relevant to government procurement. The paper argues that despite the dearth of public law remedies on government procurement, there is generally a call for a study to include public law perspective to address possible remedies in government procurement in Malaysia. The outcome for the paper supports the enhancement of public procurement processes under the Malaysian Government Transformation Plan (GTP 2.0) and enhancing public sector services under the national agenda of Eleventh Malaysia Plan.