CONSTITUTIONALIZATION OF PROCUREMENT LAW: A COMPARATIVE ANALYSIS OF CONFLUENCE AND DIVERGENCES BETWEEN SAUDI LAW AND THE GOVERNMENT PROCUREMENT AGREEMENT

Abstract

This dissertation offers an analysis of the conflict and compatibility that exists between Government Procurement Agreement (GPA) and Saudi Arabia’s new procurement under Saudi constitutional law. The study moves on to consider the most significant advancements in Saudi procurement reform as the basis on which to identify commonalities between the Kingdom’s newly enacted procurement regulations and international standards under the GPA, particularly in respect of increased digitization of the procurement process, enhanced foreign market access, integrity in procurement and procedural fairness, including stronger review mechanisms. It is noted that Saudi Arabia is already in broad substantial compliance with key elements of the international GPA regime, even if it has not commenced accession negotiations. However, the study also identifies possible deviations between the Saudi domestic procurement law and the GPA, including on thorny issues of local content requirements, many challengeable under the GPA’s non-discrimination provisions. This study thus examines how the potential tension between the legitimate rights of states to protect local interests in line with national welfare and development can be reconciled with the free-market goals of the GPA. Emphasis is placed on key innovations in the revised GPA agreement that allow for greater accommodation in national procurement obligations for developing nations under the GPA’s special and differential treatment provisions. The study concludes by contending that Saudi Arabia has compelling reasons to join the GPA by making effective use of these flexibility mechanisms.