Summary: Procurement law may not be changing anytime soon, but what might it look like if we do get the opportunity to make it work for us?
Someone once joked to me in the not so distant past that if the Leave campaign ran on the ticket it would repeal all procurement laws Brexit would be a dead cert. Well it didn’t and here we are anyway; but as a lawyer who specialises in public procurement and EU State aid law, I would be lying if the phrase “turkey voting for Christmas” hadn’t crossed my mind when deciding how to vote in the referendum (and I’m not telling you how I voted by the way).
The reality is, however, that those who have come to loathe the procurement rules shouldn’t be cracking open the Champagne just yet. Not only is procurement law embedded within our national legislation and would need to be consciously repealed by Ministers, but the UK Government has always been supportive of procurement regulation and was influential in formulating the EU procurement Directives. Moreover, in order to continue trading with Europe it is likely that the UK will need to retain procurement processes at least broadly comparable to those within the EU Directives. So procurement law is probably here to stay and like any area of law we procurement lawyers just need to keep up to date.
And no matter how unpopular OJEU tendering processes are, would UK businesses really want to be without legal remedies where they feel they have been badly treated in a tender for a public contract? In my experience, the majority of legal challenges for breaches of the procurement regulations do not involve a foreign company – they are UK vs UK. In other words, the regulations benefit everybody regardless of registered office. Do we really want to return to the world of “it’s who you know not how well you can deliver”? I doubt it.
But it has got me thinking how I would change the procurement regulations for the benefit of our clients should a government mandarin suddenly offer me the opportunity. Here’s some ideas as a starter for ten:
- remove the need to have all contract documents (including contracts!) ready at the date of OJEU;
- a reduction in procedures available by merging competitive dialogue and negotiated procedure (does anyone really understand the difference now anyway?!);
- the explicit ability to negotiate finer details post award of PB under any procedure, to reflect the realities of life and keep bid costs down;
- greater flexibility around the nature of selection and evaluation criteria, particularly in respect of how contractor experience plays into their ability to deliver on the deal in question;
- greater clarity around the tests which show when a contract is for the sale of land which the buyer wants to build on and when it is a Public Works Contract.
Any more?! Answers on a post card please. We have at least two years to fine-tune and clarify