Public Contracts Regulations 2015 - Regulation 10

Regulation 10 - specific exclusions for service contracts

Regulation 10 provides us with a list of services that are excluded from Part 2 rules. Its content is straightforwardly similar to Article 10 of Directive 2014/24/EU. The list can charitably be described as a roll call of service sectors with strong lobbying in Brussels or well established industries, as the old "Part B" services list in Directive 2014/18/EC used to be. Article 10 and Regulation 10 replace a good chunk of the old "Part B" services. Effectively, we 'abolished' "Part B" without really touching the bulk of exclusions contained in it.

Not all in the list are senseless however. For example, land acquisition, employment contracts, central bank services and operations connected with the European Stability Mechanism and European Financial Stability Facility make perfect sense. Most of the others, however do not.

Two industries are clearly apparent in the list of excluded services: legal and financial. Having worked in the first, I refuse to accept the "legal work is different" line. It is not. It is just mental, creative, draining work like many others. What is the difference between a lawyer and a designer? Or the legal and medical industries? Why does legal need to be treated differently? We all know what the lack of transparency tends to lead to in public procurement...

The same logic is valid for financial services. Are they not relevant for the internal market? Are they not cross-border by definition? If the answer to both is yes, then why excluding them from the rules all other industries are subject to?

The truth is that both industries are yet again free from most EU related regulation in public procurement for contracts that would otherwise be covered by said rules. 2014 was another missed opportunity to expand the reach of the internal market by subjecting both industries to the full might of regulation, which have been given another 10 years of protection. Directive's 2014/24/EU procurement procedures and tools are good enough for so many other service sectors, so they cannot suddenly be inadequate* when the service being procured is legal or financial.

I am not a fan of exceptions and would prefer them not to exist but if they were to exist I would prefer very specific exceptions perhaps for upcoming industries (digital; criptocurrencies; Internet of Things; etc) but not for established legacy ones such as legal, financial or rail passenger transport for that matter. I am still trying to figure out what is the substantive distinction between "rail passenger transport" that differentiates it say from bus, taxi or ferry services and justifies the exception.

Albert's entry is here. Judging by the cartoon at the bottom of the post I suspect we share similar concerns.

* There is a wider discussion to have about the procurement tools and procedures being fit for procuring services in general as they were designed first for works and then for goods. This was pointed out to me by the Canadian Procurement Ombudsman during Procurement Week last year.