Looking into public procurement 10 years on from Brexit

10 years ago I woke up unsettled at 6am after a restless night, walked down to the living room and turned on the tv. The wind was sucked from me and soon after I walked back up again, hug my baby daughter and cried. This, however, is not a blog about me personally but the impact Brexit had over the last decade in public procurement.

Before we get into that, an anecdote. It so happened that I was in Brussels the day the Article 50 negotiations started, presenting a report on EU citizenship to various stakeholders including the Commission. After the meeting I had a side chat with one of the Commission officials present there who confided he had never seen his British colleagues so unprepared for a meeting. They had no agenda, didn't know what to do or what they wanted to achieve. That anecdote ended up encapsulating Brexit quite well: no one knew what to do or what to achieve to deliver a "blue white and red Brexit."

I have to hand it to my dear friend Albert who nailed it on the head soon after by telling me it will be a lost decade of wasted effort where policymakers would be untangling the mess and re-building what already existed. The decade has passed, the UK departed the Union in 2021 and for many 'Brexit is yet to be delivered.' On the procurement side of things, however, Brexit has been delivered though with the Procurement Act 2023.

Before heading there, this is an opportunity for me to reflect on the papers I wrote about Brexit in public procurement, namely the two I wrote with Albert back in 2017 and 2018. The first one was on the GPA and what an accession to the GPA might represent, in particular the difficulties of articulating different perspectives and internal vs external demands. One of the points we were concerned about back then was the possibility of GPA parties extracting concessions from the UK as a price for re-admission. In the end, perhaps due to the shape of the EU-UK TCA and the constraints it imposed, the UK simply rolled over similar commitments to those it already had as an EU member State. On this regard, we got it wrong.

The second paper was focused on the transition and mostly on the implications for the EU/UK relationships while still discussing the (then) uncertain UK future GPA status. On this one I think our concerns about the potential no-deal Brexit made sense at the time but have not come to pass. Our views on the transition and the implications for an agreement that might cover public procurement as the TCA eventually did, stand better the test of time. I think taken together these two papers - like my PhD thesis - are interesting timecapsules or artifacts of a bygone era. But shouldn't that be the case for most of the work we do in law?

Beyond those two papers, most of my Brexit related work ended up being consumed by covid first and my move to CBS second. On covid, I stand by my assertion written here on this blog and the FT in 2021 that many of the contracts awarded in the UK during the first few months of the pandemic were illegal. My 2022 paper for the Maastricht Journal of European and Comparative Law was a scream into the void about how the limitations imposed on extremely urgent public procurement under the procurement Directive that had simply been ignored. The UK was still an EU member State at the time but of course there was zero interest on any EU enforcement of said rules, although at national level the Covid-19 Inquiry really put the finger where it hurt.

In early 2021 it became public the UK (well England, Wales and Northern Ireland) was considering making the most out of Brexit and get rid of those hated procurement rules designed by committee in Brussels. That didn't forestall the creation of a committee whose composition was never made public to design a new public procurement law completely free from those pesky EU constraints. I say 'completely free' in jest, since all UK national law is to be interpreted in accordance with the international commitments of the country which include that bothersome TCA in addition to GPA and all the FTAs signed in the meanwhile...something that appears to have evaded some really smart minds involved in the process.*

The process led to the Procurement Act 2023 which was so well designed that at some point in Parliament there were over 500 pending amendments...and the end result shows. My views on the original version of the project are well known as were the comments I made at some point in a subsequent consultation.

Irrespective of my views on the Procurement Act 2023, it came only into force two years(!) after being enacted and not without a rush to get procedures initiated before the retirement of the Public Contracts Regulations 2015. I know the better devil is the one you know, but somehow the Government (and said members of the undisclosed committee) didn't foresee that contracting authorities were not really dying to take up wholeheartedly all those Brexit sunlit uplands that had been created for them.

One of the key changes in the Procurement Act 2023 was the liberation from the litany of procedures that were really restrictive and an impediment to great procurement, replaced instead with an open procedure and an empty vehicle that can be better describe as a 'build your own adventure procurement procedure' for contracting authorities to design as they see fit...and in accordance with the guidance. About which, the last couple of years have produced a smorgasbord of...as was entirely predictable. Anyhow, the results are in and it turns out that a year later the breakdown of usage between both 'procedures' is around 80/20 in favour of the open procedure...not far from the 85/15 we currently see in the EU (open vs all others).

My view on the procurement developments within the UK (Scotland notwithstanding) is that the Procurement Act 2023 is to vague and porous (hence the need for copious amounts of ever changing guidance), changed too much of what did not need to change and too little of what needed a deep cleaning.

In conclusion, even in an area with a clear drive and mandate to 'deliver Brexit' the sunlit uplands have proved evasive. As for the rest of the country, the drop of perhaps 8% in GDP growth shows how much of a stupidity Brexit was.

*I recall a conversation with my then supervisor early on my Ph.D about the interplay between procurement and international trade, arising from a previous chat with an international trade law professor. My view was that yes there was a good deal of connection between both areas. My supervisor said that no, there was nothing to be learned in procurement from international trade. Make of that what you will.