Department For Transport sued for *that* ferry contract

Eurotunnel is suing the Department for Transport due to the ferry contract(s) awarded back in December without proper tendering procedures. This turn of affairs is not really surprising and a logical consequence of the poor handling of those contracts.

The merits of the actual complaint, they appear obvious. In my opinion, the use of the negotiated procedure without prior publication based on the grounds for extreme urgency was not legal since said urgency arose from a lack of timely action by the Government. In other words, incompetence by the contracting authority is never a ground to use a non-transparent procedure. It has been public since March 2017 that the departure date from the Union is scheduled for 29 March 2019, therefore the lack of preparation for the consequences of the default scenario for such departure (no-deal Brexit) runs from that moment as well and is not unforeseen (or unforeseeable). This is pretty much well established at EU level and probably one of the reasons why the rules about contract notice transparency are as draconian as they are.

As Albert and myself said back in 2016 about Regulation 32(2), the negotiated procedure without prior notice is exceptional in nature and as such its grounds need to be interpreted strictly as not to create competitive distortions. And the latter seems to be exactly what happened in this instance.

PS: As for piling on Chris Grayling for spending £800k on consultants to prepare the contracts that is probably uncalled for based on the total amount being procured and that time was of the essence (which is different than saying the grounds for the negotiated procedure were met). And let’s not forget one of them actually flagged up Seaborne Freight lack of trading history as a risk factor. That no one heeded such advice, on the other hand, is more than fair game.

Revising the Commentary to the Public Contracts Regulations 2015

Myself and Albert published our consolidated Commentary to the Public Contracts Regulations 2015 late in 2016. The current version was mostly based on the blogposts we wrote back in 2015 and we just updated the content in very specific areas as we were working on a very tight timeframe and with plenty of competing priorities. We are delighted with the fact that it already attracts almost 1,000 unique visitors/month (971 as of today).

The commentary itself is quite long - 98,200 words in fact - and we are certain some entries could do with a brush up, cleaning and also some updating of ideas and concepts. We would like to review a maximum of 5-10 entries this Summer and as our time available is limited (as usual) we need to focus where there is more interest/need for improving.

Checking the logs for the last 6 months it seems that people are using the following entries the most:

- Regulation 59 (ESPD)

- Regulation 57 (Exclusion Grounds)

- Regulation 33 (Framework Agreements)

- Regulation 72 (Contract Modifications)

- Regulation 24 (Conflicts of Interest)

- Regulation 37 (Centralised Purchasing Activities)

We may focus our attention on these or others, although it is clear that at least the ESDP will get a good seeing to as I have just written a paper about it.

As for the rest of our effort, which entries would you like to see us revisiting?

 

Full commentary to the Public Contracts Regulations 2015 is now available

The full version of the Commentary to the Public Contracts Regulations 2015 done by myself and Dr. Albert Sanchez-Graells is now available at www.pcr2015.uk. We consolidated the original separate entries from our blogs in a single comment to each of the 122 provisions of the Public Contracts Regulations 2015 as amended by the Public Procurement (Amendments, Repeals and Revocations) Regulations 2016.

We plan to update it as time goes on and the need for clarification arises, so if you do not agree with us or have any queries feel free to engage with us in the comments box for each entry.

Feel free to use it, all we ask is for it to be cited as such. Proposed citation: Albert Sanchez-Graells & Pedro Telles, (2016) Commentary to the Public Contracts Regulations 2015, available at: www.pcr2015.uk.

A big thank you to the Society of Legal Scholars without whose generous support we would not have been able to do the project.

Soft launching the joint Public Contracts Regulations 2015 Commentary

As hinted a few times before, Albert and I have been busy setting up a joint Public Contracts Regulations 2015 Commentary over the last six months of so. As a recap, we concluded our "procurement tennis" match in the Summer 2015 and a few months later we got a generous grant from the Society of Legal Scholars Small Projects fund to set up a proper website where we could merge a final* and "authoritative" version of our commentary.

The real deal is available at www.pcr2015.uk

The real deal is available at www.pcr2015.uk

So, without further ado we are (soft) launching today the Public Contracts Regulations 2015 Commentary! The reason why we are soft launching it now is that the content is not yet complete. So far we merged the first 24 Regulations and are aiming for releasing the second part (25-73) in early September before finishing at the tail end of October. That will not be the end of the work as this is a live commentary and one that will be updated on a case-by-case approach as required in the future and as time permits!

What we tried to achieve with the Commentary was to provide a clear view of what the law means and the major practical issues we see with each Regulation. By and large both our views are coincidental so merging was mostly an issue of style and avoiding repetition. On the odd topic we disagree on we either took the disagreement out of the commentary (ie, more theoretical arguments such as transparency vs competition) with cross-references to our respective blogposts or if really unavoidable we agree to disagree with a clear note of what each other thinks.

The content on most entries published so has been updated and reflect the alterations introduced by the Public Procurement (Amendments, Repeals and Revocations) Regulations 2016. Most entries hover between 500-1,500 words long but we have a few going close to 3,000. We cross-reference where relevant to appropriate case law and where possible we try to point you towards existing free resources to explore matters further. If we missed any good resources feel free to use the comments section so that we can add them in the future.

The commentary is available with a CC-BY-SA Creative Commons License, so while free to use, attribution to the authors is required. I know a number of you have tried to use our individual blog entries in the past for teaching purposes, you are welcome to continue to do so but our preference is for everyone to use the Public Contracts Regulations 2015 Commentary instead.

Finally, a big thank you to the SLS for supporting the Public Contracts Regulations 2015 Commentary.

*By final I mean consolidated. We plan on updating the content from time to time.