Following the list of specific derogations in Art 10 of Directive 2014/24, reg. 10 of the Public Contracts Regulations 2015 (PCR2015) lists a significant number of services contracts that are excluded from the procurement rules of its Part 2.
Under the specific exclusions for service contracts, a relatively large number of categories are excluded concerning rental of land, existing buildings or other immovable property, audiovisual and radio programmes, arbitration and conciliation services, legal services, financial services, loans, employment contracts, civil defence, rail and metro transportation services, as well as political campaigns. These exclusions are exactly the same at domestic and EU level and some of them have been included as a result of the suppression of Part B services in the 2014 rules.
In my view, some of the justifications are easier to support than others. All those concerned with legal services seem quite problematic, though, as there seems to be no clear advantage for the public sector in having unfettered discretion to choose its legal counsel. Similar considerations make the exclusion of financial services dubious.
Other professional services are covered by the rules in Dir 2014/24 and the PCR2015, which raises the question of which difficulty would there be to choose appropriate providers of legal and financial services under the applicable rules (eg, through a competitive procurement with negotiation with particular requirements in terms of experience and accreditation of the specific members of staff to provide the services, in the case of legal services; or through reverse electronic auctions within a dynamic purchasing system for the provision of financial services, which seems rather close to the liquidity auctions that central banks have been conducting for decades anyway).
In my view (and Pedro's to a large extent), then, the list of exclusions is excessive and should be pruned. Obviously, one cannot expect the UK to do so unilaterally, particularly in view of the relevance of its legal and financial sectors. However, I would put such a reduction of the list of exclusions in my wishlist for the next round of reform of the EU rules.
