Regulation 2 - Definitions
Albert drew first blood today with his post here, so it's my turn to reply.
Regulation 2 sets out the definitions for the purposes of the Public Contracts Regulation 2015. By and large they follow Article 2 of Directive 2014/24/EU but with a few differences worth mentioning.
Albert remarked (correctly) that using an alphabetical order is a better legislative technique than the mumble found in Article 2 of the Directive and also a couple of definitions that were omitted in the Regulations. He also provides a legal eyed comment on Regulation 2(2) and the important discrepancy between it and the Directive.
In my post will cover structure, new additions to the definitions list and the typo.
First, the division into paragraphs and sub-paragraphs is different from that found in the Directive. For example, if we look into the definition of "bodies governed by public law", the content in both pieces of legislation is identical but the way it is presented is markedly different. The Directive follows a discursive approach with all elements necessary for the definition contained in a long sentence, whereas the Regulations actually divides it into the constituent parts. In a sense this is similar to the way I used different coloured markers to highlight different parts of a rule as a student: main rule in yellow, special case 1 in orange, special case 2 in green, exception in blue and so on and so forth. Although the Directive approach is easier to read (in my view), the Regulations structure is more logical and reduces the possibility of misinterpretation. However, this approach is not followed consistently as the definition of innovation could have had the same treatment (more on that later).
In other words, the Directive style is easier to follow on a quick reading, but the stop-start structure imposed by the sub-paragraphs of the Regulations facilitates the application of the rules when one is trying to figure out what they mean.
Additions to the Directive's definition list
There are a few additions to the Directive's own list of definitions: academies; maintained schools; the Queen; and framework agreements. Albert has the complete package of differences, but these are the ones which attracted my attention.
The first two are due to the different structures schools can adopt in the UK which has an impact in their governance (ie, state schools are controlled by local councils, but academies are not).
I am fascinated that the Queen gets a mention in the Public Contracts Regulation 2015. You can tell I was born and bred on a republican country when I look puzzled to the exception for purchases made by the Queen in her personal capacity. It seems then that the Queen is in no obligation to follow procurement rules when it comes to personal purchases (would racing horses count as personal purchases under this definition?). I will quizz Albert to know if the same exception exists under Spanish law. It is interesting to note that this exception is not extended to other Royal family members: does it mean then they are also subject to procurement rules even when conducting purchases on a personal capacity?
Finally, framework agreements are absent from the Directive's definition list, but get a mention in this Regulation. They are mentioned but not actually defined as Regulation 2(1) simply cross-references to Regulation 33(2). Why? If this is a definition list you might as well put in the definition in or not mention it at all! Especially because Regulation 33(2) states that "In these Regulations, 'framework agreement' means (...)." Well if the meaning extends the whole of the Regulations, then Regulation 33(2) text should be simply part of Regulation 2 instead. Lawmakers had no problems in adding new definitions to the list, so they could have done the same with framework agreement.
Article 2 of the Directive includes a long-winded definition of innovation. 3/4 of it make perfect sense, but the final bit which connects to societal challenges and the Europe 2020 strategy is just unnecessary. It complicates the definition without adding anything valuable to it. Moreover, the Europe 2020 will be outdated by 2020, which means the definition will be obsolete in 5 years, probably way before we get a new Directive. Every time I speak publicly about innovation in public procurement I rail against this part of the definition.
What can we find in the Regulations regarding the definition of innovation then? Well, we can find a nice typo: where it refers to the Europe 2012 strategy it should obviously be referring to the Europe 2020 one. The Regulations made the innovation definition obsolete even before they came into force and shows how unnecessary the reference was in the first place. Furthermore, when we get to innovation partnership bit, we will discuss at length what may be the implications of the reference to this strategy.
On a less farcical note, this is a small typo and typos should be expected on documents this big. Having said that, for the time being I will attribute to the rush on getting the Regulations out before the end of the current Parliament. If you find other typos, please let us know in the comments.
PS: Another of my pet peeves is the need for pecuniary interest for a contract to be considered a public contract under Directive 2014/24/EU and the Regulations, but this is not the place nor time for that particular rant.