UK Procurement Law Going Forward

This is the time of year when I start to write my annual note on recent topics in UK procurement law for the Government Contracts Year in Review conference in Washington in mid-February. There is an awful lot to cover this year so I thought I would set out here my work plan because we all need to start thinking through all that has happened and is about to happen.

1. UK Procurement Legislation from 1st January 2021.

So we leave the EU legal world this coming Friday and the first question will be what law covers public procurement from then. My colleague Khatija Hafesji wrote about the relevant regulations when they were in draft at https://eurelationslaw.com/blog/new-draft-procurement-regulations-laid-before-parliament. The relevant regulations, The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 were made on 19 November 2020 and cover the core public sector regulations as well as the utilities and concessions regulations. A separate measure covers Defence, and Scottish regulations were made on 22 December 2020.

These changes to the legislation give effect to departure from the EU in a context in which, simultaneously, the UK becomes a separate member of the WTO Government Procurement Agreement: https://www.wto.org/english/news_e/news20_e/gpro_02dec20_e.htm

The regulations make little substantial difference in the law, beyond the changes necessary to reflect departure from the EU legal environment (like changing where notices are published). There are a few oddities in the text but it may be that we don't need to dwell on them if they relevant only to some transitional posture being adopted by the UK government.

2. Interpretation of UK Procurement Law from 1st January 2021.

There are then further questions about how to interpret UK procurement legislation that were prepared as implementation of EU measures. What assumptions are to be made about legislative intent if legislation that gave effect to EU measures is now effectively relegislated through these specific EU Exit provisions? What relevance is the historic EU background? For example, there will continue to be an obligation to comply with obligations of equal treatment and non-discrimination in Regulation 18 of the Public Contracts Regulations 2015, but what does that mean when those obligations become pure domestic law obligations rather than implementations in domestic law of an EU law obligation? This involves questions about the correct approach to legislative interpretation, and the continuing indirect effect, if any, of EU legislation. These questions also involve careful consideration of the meaning and effect of EU retained law in the context of procurement law.

3. Flurry of Activity in UK Procurement Law and Policy

Despite everything else, there has been a considerable amount of new content with a direct and immediate impact on UK procurement policy. These are some of the key additions to thinking on public procurement law and policy.

The Outsourcing Playbook was updated in June: see https://www.gov.uk/government/news/updated-outsourcing-playbook

It is now joined by its sibling, the Construction Book produced in December: https://www.gov.uk/government/publications/the-construction-playbook

New plans for improved platform procurement are being trialled: https://purchasingplatform.crowncommercial.gov.uk/

Changes have been made to the content and effect of guidance on procurement of social value in the context of public procurement: https://www.gov.uk/government/publications/procurement-policy-note-0620-taking-account-of-social-value-in-the-award-of-central-government-contracts

New Guidance on Bid Evaluation has been set out by Cabinet Office in https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/891150/Bid_Evaluation_-_Guidance_Note_-_June_2020.pdf

4. Responding to Covid

All these changes are at least to some degree separate from Brexit and the other great theme, the impact of Covid on procurement and the lessons that may be learned. There has been much criticism in the press (see this overview in the New York Times: https://www.nytimes.com/interactive/2020/12/17/world/europe/britain-covid-contracts.html) This is obviously very much an ongoing issue. The National Audit Office has already produced two reports, the House of Commons Public Accounts Committee is undertaking an inquiry, and other bodies have already conducted investigations into different aspects of this complex topic. One shorter outcome of note is the report from the Boardman review into procurement in Cabinet Office itself at https://www.gov.uk/government/publications/findings-of-the-boardman-review

5. Plans for Review of Procurement Law

Government produced a detailed consultation paper in December setting out proposals for procurement law reform at https://www.gov.uk/government/consultations/green-paper-transforming-public-procurement. The consultation closes on 10 March 2021. There is alot to comment on in that document and I will return to it, particularly now that we seem to have the UK-EU context for the operation of that law in place.

As a teaser, here's a link to early remarks by Albert Sanchez Graells at https://www.howtocrackanut.com/blog/transforming-public-procurement-green-paper-hot-take. A couple of points are worth underlining. Most of what is put forward as some great reform is something could probably have been done within the context of the EU directives if they had been properly implemented by the UK in the first place. On the whole this document seems to reflect the beginnings of the sort of grown up conversation about procuremnt which we have been prevented from having for a decade or so. However, perhaps out of some nostalgic regret the whole document is bizarrely EU-centric for a government that wants to shed itself of that fixation. Indeed in a number of places the only basis for action is a reference to EU statistics or policy. There is a global context to public procurement but for all the talk of Global Britain there seems to be little focus on that here.

6. Trade Agreements

A number of trade agreements have been entered into this year with key trading partners - Canada, Japan, Singapore among others. There are a number of different procurement provisions in these and in due course we will have to return to their detail, but first the largest.

7. EU-UK TCA

There only 11 pages specifically addressing the relationship between UK and EU procurement law in the EU-UK Trade and Cooperation Agreement: see text at https://ec.europa.eu/info/sites/info/files/draft_eu-uk_trade_and_cooperation_agreement.pdf The text only became available yesterday and even these pages will require some careful study as they interlink back to other documents, particularly the GPA.

We cannot yet be certain about the legal effects of this agreement as we must await the proceedings in Parliament later this week and confirmation from the EU institutions. The intended position within the EU seems to be that the agreement will have provisional application until the end of February so that the European Parliament can review it, but we can assume that there is more fun ahead. There always is with EU trade agreements!

8. EU law's continued impact on procurement in the UK.

Preliminary review of the EU-UK TCA suggests that there will be a number of ways in which EU procurement law, and EU law more generally will have a direct impact on procurement in the EU. A few immediately stand out. First, there is the case of Northern Ireland where a number of provisions will have interesting cross-border ramifications. Second, and relatedly, state aid law will have a continued place to play in regulating government spending or support and that will have an inevitable impact on procurement. Finally EU law is likely to be immediately effective on procurements in the UK arising out of EU programmes in which the UK continues to be a participant.

9. The ongoing interplay between UK and EU law

It is certainly not an original thought on my part, but the immediate impact of the EU-UK TCA seems to be lock the EU and UK into numerous complex legal and institutional relationships which will substantially limit the action of each, and at least to some degree will create the framework in which a degree of regulatory competition will operate. Procurement will certainly be an area in which one can expect that the UK will seek to reform within the tight constraints imposed by the GPA and the EU-UK TCA, but will find that it is tied back in a number of respects. The extent of these ties will flow from analysis of all the above elements.

I propose to start working my way through these topics, albeit not in the order set out above. I doubt I will cover them all because things are moving so fast I expect that by the time I get to some of them the subject will have moved on, but here goes!