Interpreting Force Majeure and its Impact on Public Procurement Contracts In the context of COVID-19: A comparative study of Thai law with the European Union and Japan

Abstract

This article aims to study the interpretation and application of the principle of "force majeure" in government procurement contracts under the Government Procurement and Supplies Management Act B.E. 2560 (2017), specifically analyzing the problems of contract extensions during the COVID-19 pandemic. It also compares the approaches to government contract management in the European Union and Japan under emergency situations. The research employs a doctrinal approach, analyzing relevant laws, regulations, circulars from the Comptroller General's Department, administrative court rulings, and laws and practices from the European Union and Japan related to managing government procurement contracts during crises. The study finds that the interpretation of force majeure in public procurement contract management cannot rely solely on private law principles. Instead, such interpretation must also take into account public law principles, particularly the continuity of public services, proportionality, and good governance, in order to maintain an appropriate balance between public interests and the contractual burdens imposed on private contractors. The COVID-19 pandemic may, depending on the factual circumstances, constitute force majeure or a legally excusable event justifying contract extension under Section 102 of the Act. Furthermore, the contractual amendment mechanisms under Directive 2014/24/EU, together with Japan’s flexible approach to public procurement contract management during emergencies, demonstrate useful legal frameworks for enhancing flexibility, legal certainty, and administrative efficiency in Thailand’s public procurement system. The author proposes that clear and standardized guidelines for interpreting force majeure and granting contract extensions should be established in order to reduce inconsistent administrative discretion, strengthen legal certainty, and improve the efficiency of public procurement contract management during emergency situations.