Public Contracts Regulations 2015 - Regulation 24

Regulation 24 - Conflicts of interest

Regulation 24 transposes (well, implements) Article 24 of Directive 2014/24/EU in England, Wales and Northern Ireland. Article 24 contains a traditional "directive" for Member States by establishing the objective (avoiding conflicts of interest) without prescribing the specific measures needed apart from a few constraints. As such, lawmakers will have to design a system appropriate for their jurisdictions. Although Article 24 establishes a de minimis rule, allowing Member States to go farther in defining further cases as conflicts of interest.

Paragraph 1 of this Regulation defines that contracting are to deal with conflict of interests in procurement, but does not provide detail on how to achieve it. As a civil lawyer by training, this is again a situation where further detail for contracting authorities (ie, handholding...) was appropriate to make their life easier. In other words, some more time for the transposition would have been helpful. As things stand, it will be up for the courts to sort this out if we ever get a ruling on this. Or for the next Government for that matter.

Paragraph 2 identifies two target areas where conflict of interest may arise according to the law: i) the conduct of procurement officers; ii) the involvement of external actors in the conduct of the procurement procedure. It is interesting to note that the conflict of interest extends to the external actors (ie, consultants) but only in the conduct of the procurement procedure. This can be explained by the fact that Regulation 41/Article 41 deal with the potential conflict of interest where an economic operator was involved in drafting the technical specifications. Why they are not dealt with together in the same regulation/article is beyond me.

As Albert pointed out last week, the Court of Justice has recently produced a decision on conflict of interest in the eVigilo case (his in depth comments about the case are here.)