Links I Liked [Public Procurement]

1. Commission publishes Report on the Remedies Directives effectiveness. I suspect this is the capping stone to justify not revising the Remedies Directives which, for me is a mistake. There is a significant difference between "speedy access to review mechanisms" and "speedy final decisions". And that before even mentioning the opportunity costs of cheap litigation (Portugal) or of very expensive litigation (UK),

2. Commission launches consultation about ex ante assessment of large infrastructure projects. I can already see the line of defense if project goes south "but the Commission said we were doing everything well!" Frankly, I am quite puzzled by this proposal at least in the current format.

3. Scottish Government publishes its Procurement Strategy 2017-19. Very pro EU, except when talking about local businesses and community benefits.

4. Welsh Government puts out Brexit whitepaper.  As for procurement, it is keen in keeping access to the European Investment Bank for obvious reasons, while at the same time, railing against the current procurement rules which limits the use of procurement proactively as a tool to generate economic activity as to keep public sector expenditure in Wales (p.32). That would not be a problem if not for the stated claim that Wales also wants full access to the Single Market. I think they mean "one way street access" to the Single Market.

Some preliminary comments on the Public Contracts (Scotland) Regulations 2015

I have given a quick look to both the new Public Contracts (Scotland) Regulations 2015 and the accompanying Policy Note from the Scottish Government. At first sight, the differences between the Scottish Regs and the Public Contracts Regulations 2015 are smaller than I originally anticipated them to be. Having said that:

1. No contracts can be reserved for third sector organisations in Scotland

This is probably one of the most surprising distinctions between the two sets of Regulations. I did not expect Scotland to zig where England and Wales zagged with the transposition of Article 74ss. 

I do agree with this decision as the set aside regime of Article 74 is a slippery slope but the arguments provided by the Scottish Government that "this can seldom occur in real life" do not appear to be the strongest. In fact, I am of the opinion that they are dangerous precisely because there is the risk that it will be quite easy to make common and tilt the playing field in favour of specific suppliers.

I addressed this briefly on a paper that is coming on the next number of the EPPPL. You can find an ungated copy of that paper here

2. No full ESPD system until October 2018

Although the Scottish Government claims in the Policy Note that some of the changes introduced by the new Regulations will make life easier for SMEs, it is a shame that it was not consistent in its drive to reduce transaction costs for economic operators. As such, it is delaying the mandatory use of ESPD and the restriction on contracting authorities requesting information from economic operators until late 2018.

3. Living wage may be required from economic operators

Granted, this requirement is not set in the Public Contracts (Scotland) Regulations 2015I, but is spelt out as statutory guidance. I think this will be an interesting battleground for social policies in the coming years and Scotland is charging head on 

4. There will be a "sustainable procurement duty"

I am not even entirely sure of what this will entail, but it is apparently connected with Community Benefits policy which will become mandatory from June 1st onwards. However, there is no mention to either concept on the new Public Contracts (Scotland) Regulation 2015 so I suspect (and need to confirm) that the Policy Note is referring to an obligation included in the Procurement Reform (Scotland) Act 2014 which will now come into force.

5. Last but not least...Why not merging the Procurement Reform (Scotland) Act 2014 into the new Public Contracts (Scotland) Regulation 2015?

I am quite puzzled that the Scottish Government would pass on the opportunity to have all the public procurement legal framework in a single act, as was done for England and Wales ("statutory guidances" notwithstanding). It makes sense from a systematic perspective to have all regulation in the same place, instead of passing on the cost of compliance with scattered legislation to the market and the contracting authorities.

I could understand the separation in case they covered different contracts - but they do not. As far as I can tell and according to Regulation 3 of the Procurement Reform (Scotland) Act 2014, all contracts above £50,000 (goods and services) and £2,000,000 (works) are covered. Therefore, the Scottish legal regime applicable to contracts covered by Directive 2014/24/EU is to be found on the two sets of Regulations. 

As for the compatibility of certain provisions of the Procurement Reform (Scotland) Act 2014 (yes, community benefits, I am looking at you) with EU law, that remains to be seen. I find it puzzling (or not) that neither community benefits nor the living wage requirements are mentioned at all in the new Public Contracts (Scotland) Regulations 2015...

Links I Liked [Public Procurement]

1. 18F (USA) tries micro-purchases again. This time with their own tool, instead of using GitHub.

2. Visualising €1.3 trillion worth of EU public procurement contracts. Wow. Great to see connections where they are not obvious.

3. The Death Star bankrupted the far, far away galaxy. Not really public procurement, but the implications of the failure of a massive project on a supply chain. 

4. Scotland has a new public procurement law. I am yet to spend some quality time looking into it the Public Contracts (Scotland) Regulations 2015, but want to do so in the near future to compare it with the Public Contracts Regulations 2015. Policy note here. No, I will not be commenting on them one by one...

5. Too much outsourcing in the UK? Speculative.