Links I Liked [Public Procurement]

1. Portuguese Audit Court unimpressed with PFI/PPP hospital (Portuguese only). The Audit Court analysed the first couple of years of the Loures privately managed hospital in Portugal and did not find significant management improvements in comparison with the best publicly managed hospitals. Its management is better than average for the country, but that is pretty much it. (NB: I was involved in a minor capacity as a lawyer on the original tender procedure back in 2004/2005, which was never concluded. I was not involved in the final one.)

2. Conflict of interest in health procurement in Yorkshire. Very interesting. As Albert mentioned on Twitter, if only the Public Contracts Regulations 2015 were applicable to this case... (his comment; my comment). PS: This situation would be dead easy to solve in Portugal...

3. How technology and a small team is changing procurement in the US. Well, not only procurement but Government in general.

4. Sidney adopts e-ink for some traffic signs. Now that is innovation. Well done. Oh, and Sheffield is creating a SmartLab to find new solutions for problems the city have. Now if only they matched the design/development stage with actual procurement...

5. No water cannons for Boris Johnson. At least he did some savvy procurement by getting the water cannons second hand from Germany. They may be useful as mobile fountains during this scorcher Summer we are having...

6. Speaking of Boris...More on the Roastmaster, sorry Routemaster. Great write up by the Guardian on the Routemaster bus. Some great insight about the difficulties of doing procurement of innovation well and how costs can quickly spiral out of control. I am still puzzled by the assumption that the bus could be sold in other markets and if that happened (it did not) it would have an effect on the price TFL would pay for the bus. Wondering what kind of intellectual property agreement exists between TFL and Wrightbus. In any event, there is no innovation without risk. There is no innovation without failure.

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.)