Problems Of Procurement And Undue Advantage In Publicly Funded Higher Education Institutions: An Analysis Under Administrative Law And The Jurisprudence Of The Administrative Courts

Abstract

          This article analyzes the exercise of administrative power in public procurement within state-funded higher education institutions under Thai administrative law and Administrative Court jurisprudence. It focuses on the determination of conditions, qualifications, and procurement methods, particularly the formulation of technical specifications (Terms of Reference: TOR) that may unfairly restrict competition (“specification locking”). The study adopts a qualitative documentary research approach, examining relevant legal provisions, Supreme Administrative Court decisions, and academic literature. The findings reveal that TOR formulation and the selection or alteration of procurement methods involve technical discretion with risks of restricting competition. Although the law establishes principles of transparency and fair competition, its implementation is constrained by limitations in controlling administrative discretion. The Administrative Court has developed standards based on proportionality, equality, and the duty to give reasons. The article proposes strengthening discretion control by treating competition as the default rule, strictly interpreting exceptions, reinforcing the duty to give reasons, establishing independent internal oversight, and introducing appropriate accountability and sanctions for unlawful exercise of administrative power, alongside proactive transparency measures to enhance procurement governance.