Public Contracts Regulations 2015: A four hand commentary

As my friend and colleague Dr Pedro Telles (now in Swansea University) has been announcing on twitter (@Detig), upon suggestion of our friend Dr Carina Risvig Hamer, we are engaging in a four-hand article by article commentary/debate on the Public Contracts Regulations 2015 (SI 2015/102)--or, as he likes to call it, we are playing some "public procurement tennis". We have created the hashtag #pubcontregs2015 to make our discussion easily traceable and we hope some of you will join us. There are other distinguished bloggers already active in this field (see Abby Semple's recent remarks), so it would be great if this would become the first instance of "real time" academic and practitioner commentary on-line.

The project requires that both of us comment on a specific regulation every working day (so we should see the end of the game in about 6 months). As a result, we should have created a fairly comprehensive (if brief and probably informal at times) commentary of this important piece of legislation for England and Wales (not Scotland, as he kindly reminds me), which may serve as a guideline or sounding board for other Member States in their path towards transposition of Directive 2014/24, due on 18 April 2016 (art 90 dir 2014/24).
 

Pedro has published his first views on the general part of the Regulations and Reg 1 earlier today. Mine are below. Let the games begin.

I share some of Pedro's preliminary views regarding the "cut and paste" approach to legal transposition in the UK. However, I would suggest that there are two disingenuous potential explanations. On the one hand, the Government was in a rush to make effective some of the reforms strongly lobbied for in Brussels (and the important carve-out from procurement rules provided for in regulation 77 on Reserved contracts for certain services quickly pops to mind as a key element of the on-going public sector reform and mutualisation initiative; for discussion see A Sanchez-Graells & ESzyszczak, 'Modernising Social Services in the Single Market: Putting the Market into the Social' (2013) and my recent remarks here).

On the other hand, there is a long-lasting culture against 'gold-plating' in the transposition of EU rules, which creates incentives for the Government to benefit from the poor technical quality of the 2014 EU rules. I agree that this is not conducive to legal certainty and that is in itself a problem, but from the perspective of a Government soon to be confronted with an EU opt-out referendum, there is a "strong" (perceived) benefit in showing that it simply does the minimum it is actually required to do under EU law.

Regarding reg.1 PCR2015 Citation, commencement, extent and application, there are limited comments one can make regarding the extent and application of the rules, as they are oriented towards ensuring the effectiveness of the devolution of powers (at different levels) to Wales, Northern Ireland and Scotland. This is an internal constitutional issue and, as much as the regulation of "below-threshold" contracts could benefit from development in the UK and elsewhere [see the various contributions to R Caranta and D Dragos (eds) Outside the EU Procurement Directives—Inside the Treaties?, vol. 4 European Procurement Law Series (Copenhagen, DJØF, 2012), including Luke Butler's contribution on the UK and mine on Spain], from an EU law point of view, this remains fundamentally out of bounds due to the principle of autonomous organisation--subject "only" to compliance with the general principles of EU law [as discussed extensively by Carina in her book Contracts not Covered, or not Fully Covered, by the Public Sector Directive (Copenhagen, DJØF, 2012)]. Hence, I have nothing to add on this point.

Secondly, as the timing for transposition is concerned, the approach adopted in reg.1 PCR2015 is again fundamentally a mere cut and paste of the transposition deadlines set by Directive 2014/24 (art. 90). The PCR2015 is designed to map and maximise the flexibility for transposition allowed for under the EU rules (which set the same extended deadlines of 18 April 2017, 18 April 2018 and 18 October 2018 as electronic means of communication and certain aspects of the conduct of centralised procurement are concerned). Differently from Pedro, I am not necessarily an eProcurement enthusiast (not least because of the impact that the investment in technology can have for some 'traditional' SMEs, as well as for the public sector itself, as well as the competitive impacts it can have on neighbouring markets, such as software and hardware), so I take no issue with the space that the UK Government has decided to keep for the design and roll-over of a proper eProcurement strategy. 

I also see no problem in providing for a three week vacatio legis for the entry into force of the PCR2015, particularly because "business as usual" (ie procurement carried on under the Public Contracts Regulations 2006, as amended) would comply with PCR2015. Hence, if the contracting authorities in England and Wales want to take advantage of the changes in the PCR2015, they can do so promptly. Conversely, if they are not interested, do not (yet) know about the new rules, or simply take longer to implement the changes, then there is no detriment from an operational perspective.

All in all, it looks like this first provision, aseptic as it may have seemed, is already open to different views. I honestly can't wait for our debate on more substantial and controversial issues. I am sure that there will be days when we may have nothing much to say or we may not disagree, but most of the days there should be scope for different approaches and opinions.

Today I had the easy job of "responding", but I will be more than happy to open the conversation on other matters. Needless to say, any feedback and comments will be most welcome. For now, I hope that this first (pair of) appetizer(s) has been thought-provoking. Stay tuned for more!