This article discusses the National Performance Review's (NPR's) broad-reaching effort to reinvent government by making it more businesslike, focusing on its successful effort to reform the Federal procurement process. The article shows that the reformed system couples greatly increased buyer discretion with dramatically reduced oversight of government spending - both internal and external. This article asserts that this combination erodes the public's confidence in the procurement system, violates established norms, and is antithetical to a host of Congressional mandates and policies. More particularly, the article provides empirical evidence of the dramatic, sustained reduction in government contract related litigation during the 1990's. The article expresses concern because the trend coincided with two significant changes: (1) a large-scale Congressionally-mandated reduction in acquisition personnel, which materially reduced internal oversight, and (2) the sweeping NPR re-invention initiatives, which considerably increased purchaser discretion. The article offers a provisional list of explanations for the decrease in litigation. It asserts that, in this context, litigation - a form of external monitoring initiated by private attorneys general - is a public good. Reduced litigation relating to the award and performance of the government's contracts threatens the public's trust in the reinvention agenda. Litigants, in this context, serve the public interest while pursuing their own self interest. Moreover, the need for the private sector to provide this service increases as internal oversight decreases. The article suggests that, despite the success of procurement reform, the current paradigm elevates its facially attractive norms - efficiency and discretion - at the expense of other established, yet apparently undervalued, norms that guide the procurement system, e.g., transparency, integrity, and competition. It cautions that businesslike government has diluted existing internal and external oversight mechanisms and threatened sustained public confidence in the procurement system.
50 Am. U. L. Rev. 627 (2001)