Public Contracts Regulations 2015 - Regulation 38

Regulation 38 - Occasional joint procurement

Regulation 38 provides contracting authorities with a simple set of rules to determine responsibility in case they decide to do some joint procurement. This Regulation transposes Article 38 of Directive 2014/24/EU into England and Wales.

What Regulation 38 tries to achieve is the creation of joint responsibility (liability might have been a more appropriate choice here?) for joint procurement. As all the talks about joint responsibility or liability tend to end, the crucial element is to define exactly where the border for that joint responsibility lies. I suspect this is an area where there is no interest in harmonising at EU level, thus leaving for the national legal systems the work of solving the issues associated.

Paragraph 2 states that where the procurement is done "in the name and on behalf of" another contracting authority or authorities, then there is joint responsibility by all authorities for resulting obligations. This main rule warrants two comments. First, all elements need to be present for the responsibility to be joint (unless general national laws would establish otherwise I suppose), leading thus to potential scenarios such as what happens when the procurement is done in the name and behalf of someone else but the supplier is not aware? Is it a requirement for the joint liability for the name of the other participating authorities to be disclosed or is it simply an internal requirement (that is all participating authorities are aware of the procurement) irrespective of the supplier being informed? I can definitely see a "pass the buck" game going on between the various contracting authorities if something goes wrong, leaving aggrieved bidders or suppliers without knowing exactly who to sue or complain to (Albert has similar misgivings).

Second, for a civil lawyer as myself, It is interesting to note that the word used in the Regulations is obligations, which in other jurisdictions implies that they can have an extra-contractual nature in addition to a contractual one, ie they can also originate in tort.

Paragraph 4 tries to solve the "in the name and on behalf of" conundrum by establishing that when a procurement is not fully jointly undertaken, then the joint part generates joint responsibility and the rest does not, leading to what Albert calls a mixed responsibility scenario. Probably this could be inferred from the previous rules but at least it is quite clear.

My final observation is that this appears to be a simple framework to help Member States, but cannot think that it would have been preferable either not to have it at all, leaving the issues associated squarely with national law or else to actually establish a proper liability regime for joint procurement. As things stand, it's neither here nor there and contracting authorities need to think carefully about the potential pitfalls before embarking into joint procurement.