The Unprotected Reporter: The Problem of Protection When Challenging Unfair Requirements in Public Procurement

Challenging restrictive requirements in tender documentation is theearliest point at which an irregularity in public procurement becomesvisible. The person who raises the challenge is almost always an externalmarket participant, typically a supplier excluded by the requirementitself. Whistleblower protection regimes, by contrast, define their subjectthrough an employment or other internal relationship with the wrongdoer.This study introduces the category of the external reporter and shows thatthis figure falls outside both regimes: the review channel receives thesignal but protects only the legality of the procedure, while theprotection regime protects the reporter but is closed to anyone outside thework-related context. The gap originates in the United Nations Conventionagainst Corruption, where procurement review (Article 9) and the protectionof reporting persons (Article 33) stand apart, the first mandatory and thesecond merely invited. Applying a single analytical matrix across three groups of jurisdictions,with the United States as a counterpoint, the study finds that the gapreproduces itself under opposite institutional conditions: in the EuropeanUnion despite the maturity of both regimes, in Latin America despitestanding as broad as the Brazilian right of any person to challenge tenderdocumentation, and in the post-Soviet states despite tens of thousands ofcomplaints a year. Different mechanisms drive out the same figure: abarrier of entry cost in Argentina, a barrier of entry status in Russia.Small suppliers bear these costs disproportionately, and their silenceleaves no trace in the statistics. Recommendations address international organisations and nationalauthorities. An annex contains the consolidated matrices.