A recent article on the Lexology website – but originally published in the “Procurement & Outsourcing Journal” – caught our attention. It was written by Robert Bell of law firm Bryan Cave LLP, and despite the less than gripping title – UK public procurement legislation will be heavily influenced by the nature of any future trade agreements between the UK and the EU – it is interesting and important reading for public procurement folk in the UK, and those outside who may have some trading relationship with the country post-Brexit.
Like most experts we have seen or read recently, Bell does not believe there will be major, rapid changes to UK legislation post Brexit. The country will probably be bound by World Trade Organisation (WTO) and the Government Procurement Agreement in order to have access to EU and other markets. As Bell says:
“… the GPA does contain rigorous rules on how procurements must be carried out and so remaining a signatory would therefore tie the UK government’s hands to a certain extent. Nevertheless with this greater latitude the government could look to amend the scope of the rules and simplify competitive tendering procedures, remedies and also rules on post-award contract modifications”.
He raises some interesting points on EU case law, which is not something we’ve particularly considered up to now. Will UK courts, when looking at a public procurement challenge for instance , have to follow pre-Brexit case law? We have had a fairly consistent application acorss the EU of the law deriving from the procurement directives, and cases have informed some key areas such as evaluation processes, transparency to bidders and abnormally low tenders. Bell thinks pre-Brexit case law will remain important – that is probably a good thing!
There are also questions about advertising contract opportunities. That is another practical issue which has not been widely discussed; will the UK still be allowed or indeed want to advertise in the Official Journal (OJEU)? Probably not, but then how will contracting authorities go to market? Will Contracts Finder be the prime route – an option certainly, but that site is still not as user-friendly as it could be.
If the GPA does become the dominant regulator, then there is scope under that to loosen the rules for utilities and defence procurement. However, as Bell says:
“It seems very unlikely that the UK government would want to remove utilities from competitive tendering procedures. There may be more room for manoeuvre with defence procurement …. Less access for non-UK bidders for defence and security-related contracts could be a distinct possibility. Mind you, all that appears counter-intuitive when viewed against the current government’s increasing drive to regulate single-source contracts and increase competition. The government is therefore unlikely to take steps which would remove welcome competition for these types of contracts”.
I guess that depends how strong the “nationalist / protectionist” view is at the time, although in defence, we often see situations where the only credible supplier is a non-UK firm. That is just the nature of that industry, perhaps unfortunately.
Whilst the article is well worth reading and raises a number of interesting issues, Bell does make some contentious passing statements. He suggests that post Brexit the EU regime could be simplified in the UK through moves including “relaxation of the rules on contract modifications and on the requirement relating to transparency of evaluation”. We would have some sympathy with the contract modifications point; in truth, this is an area where contracting authorities pretty much ignore legislation anyway. The fact is, nobody outside buyer and supplier generally knows when a contract has been modified, so challenges are very unusual, even though modification that is technically “illegal” does happen all the time.
But the idea of evaluation becoming less transparent fills us with horror. Firstly, if a supplier does not know how you are going to evaluate their proposal, how can they put in their best offer? It seems to us simply unfair if a supplier does not know how their bid will be considered, and it would be anti-competitive as some firms would simply not bother bidding.
And secondly, this would open the door to favouritism, fraud and corruption. If contracting authorities can for instance wait until bids have been submitted, then decide what the evaluation process and criteria are going to be, then making sure the contract goes to your favourite supplier (you know, the one who just paid a few million into that secret bank account) will be very easy.
We’re all in favour of an intelligent review of the regulations post-Brexit, but if the UK moves away from procurement transparency, the outcome will not be good for the country and the taxpayer.