Regulaton & Policy
What’s The Future For The ESPD: Does Brexit Mean ESPD Exit?

A couple of months on from the seminal UK vote to leave the European Union, the process for that actually happening does not seem any clear. The lack of British civil service staff who are capable of conducting the negotiations is becoming evident, and we hear that the government is busy signing up lawyers and consultants to fill those roles, no doubt at great expense. Let’s hope procurement professionals are involved at least in those negotiations on the day rates.

In a number of areas though, people are beginning to think about what Brexit might mean at the detailed level of procurement processes, regulations and developments. For instance, there are questions about the European Single Procurement Document, (ESPD) which is designed to allow firms form any country to submit what is in effect a standard pre-qualification response to any tender. The firms can “self-certify” that they meet various conditions, and the idea is to reduce red tape and increase commonality of approach across countries.

The 2014 public procurement directives stipulate that the ESPD must be provided in electronic form after April 18th 2018. But until then, both electronic and paper versions of the ESPD may exist. And from January this year in England and Wales, there was an obligation on contracting authorities to accept the ESPD from bidders to confirm as preliminary evidence (instead of certificates issued by public bodies or third parties) to confirm that they meet the various standards required of public sector suppliers.

It’s worth pointing out that the ESPD does not mean that the supplier won’t have to complete some additional information or respond to tender-specific questions when bidding. As I’m sure we’ve said before, the pre-qualification stage has three purposes.

1.  To gather basic factual information about the prospective supplier.

2.  To establish whether the supplier is qualified to do the work – both legally e.g. not a tax evader or criminal!) but also technically.

3.   Where there are more qualified bidders than the buyer wants to take through to final tender (or the next step in the process) , the pre-qualifying also ranks the bidders so the “best” can go through to the tender stage.

It is clear that the ESPD can fulfil point one and some elements of point two if it operated properly, but it cannot meet the third requirement, as the ranking questions will depend on the precise nature of the tender.

But with the decision to leave the EU, is the ESPD future in doubt, for the UK at least? As Government Computing website reported last week, the “decision to leave the EU raises questions over the impact and future implementation of a self-declaration form used in public procurement procedures by public sector buyers and businesses”.

Crown Commercial Service, the UK government’s central procurement body and the guardian of procurement policy, is said to be “currently discussing the most suitable option for ensuring that government’s guidance and standard documents on selection are aligned with the ESPD” and updated guidance on supplier selection is expected to be issued soon.

But if the UK stays in the single market, even beyond Brexit, contracting authorities will have to implement the online ESPD anyway. We’re not convinced it is a huge step forward – given the issue of the need for specific PQQ questions anyway – but it does seem worthwhile on balance. However, the irony is that while the EU talks about cutting red tape, over the years the list of topics that suppliers have to verify, adhere to or explain has got longer and longer! Equality policies, health and safety, modern slavery, the Bribery Act, tax compliance … the burden on the supply side has undoubtedly increased over the years.

Anyway, we will see what stance CCS and the UK takes in terms of the ESPD. And this may be the first of quite a number of similar issues where a future outside the EU might change current plans; for instance, will eInvoicing still be mandated for contracting authorities in the UK? That might be the next question we take a look at here, and is presumably something the policy folk at CCS are also considering.

Voices (2)

  1. Roger Holloway says:

    Would be interested to know what CCS actually mean by “issued soon”. I asked CCS for an update on this on 14th June and got the same holding pattern response. Perhaps they shouldn’t have used PCR2015 to enforce their version of the PQQ if they can’t keep it up to date.

    It’s now 4 months since SI 2016 No.275 which effectively obligated them to update it to include Modern Slavery in the mandatory questions. I’d argue that using their PQQ is technically illegal without making an amendment to that effect (oh, and reporting to CCS).

  2. Phoenix says:

    Sam Rowbury, Director of Policy at CCS told me today that issue of the ESPD is “imminent”.