Public Contracts Regulation 2015 - Regulation 18

Regulation 18  - Principles of procurement

Regulation 18 introduces Section 2 - General Rules. And there is no better way to start talking about general rules than to mention the principles applicable to public procurement. This Regulation transposes Article 18(1) of Directive 2014/24.

Strictly speaking, there is nothing earth shattering in Regulation 18. The Regulation expressly recognises that equal treatment, transparency and non-discrimination are applicable to public procurement in England, Wales and Northern Ireland, but only for contracts covered by Part 2. Albert argued in his entry that this is nothing new in the UK and that Peter Cane has held the view that those principles already applied in England, Wales and Northern Ireland. In consequence, the first paragraph of Regulation 18 does not create any new law or rules. Frankly, I do not know enough about English administrative law to say that is correct or not.

Paragraphs 2 and 3 constitutes a clear and unambiguous assumption that the principle of competition is now firmly accepted as a public procurement principle. We could deduct it from the Treaty (and the logic that EU public procurement rules exist to achieve the internal market) but now is crystal clear. I expected Albert to blow his trumpet loudly today but as he was too  humble, I will do it for him: the man as been arguing this for most of his career, so it is fitting that even here this principle has been accepted. Let's not forget that other reputed scholar(s) think otherwise (and in my view are on the losing side of the argument).

Although it can be argued as Albert did that the principles of equal treatment, non-discrimination and transparency are not new in England, Wales and Northern Ireland, I doubt the same can be said about competition. The clear indication that the principle of competition is applicable to the public sector (and in consequence, administrative law) is certainly a novelty in these shores. Or at least it should be.

What about Article 18(2)

Albert picked up yesterday on the detail that the Regulations only transposed half of Article 18, ignoring the second paragraph which imposes the obligation on Member States to ensure compliance with obligations on environmental, social and labour law created by EU law, national law or international instruments included in Annex X to the Directive. This is a prime example where a Directive establishes an obligation of outcome (compliance with certain rules) but does not prescribe the means to do so. Whereas he stated the command is not technically an obligation for contracting authorities, I take a different angle: this is a Directive provision which needs to be transposed into national law, if not here somewhere else. The (persuasive) counter-argument to my point is that this compliance obligation exists all along, this is not a new command (or enhanced compliance requirement) so there is no need to put it down in law once again. To what I would reply: sure, but then the same can be argued about the references to Article 346 of the TFEU and other similar examples. My question thus is: why the difference? Is this an honest mistake of treating differently what should be equal? Or was this a political decision?

As I argued before, a little bit more time for the transposition and this rough edge could have been ironed out.