The Public Procurement Act proposal: mixing up simplification with flexibility
I had an interesting exchange last night on Bluesky about the Public Procurement Act proposal and its purported simplification. There I simply stated that 'simplification is yet to be seen.' My good friend Albert nailed it in the head on Linkedin:
There is a difference between reducing the number of legal provisions and actually simplifying an area of the law, and the UK's* Procurement Act 2023 is a cautionary tale. That is a view I expressed multiple times during its development cycle.
I don't think the Commission press team made things better by leading with the message of the new ruleset being 'simpler and more strategic.' While it is true that it is simpler in the sense that you finally have one single piece of legislation instead of three and you reduced the total number of articles (and thus words) covering the same scope, that is just a surface level simplification.
The Public Procurement Act is neither simple nor simpler than what came before. It is different and answers different design considerations. As Albert correctly pointed out, it is a lot more flexible and provides a higher degree of discretion to contracting authorities. These, however, are orthogonal to the idea of simplification. They imply more variability of practices (less simple!) and the need to take more decisions because your hand as a procurer is no longer being held as before (less simple again!). This may or may not lead to additional legislation being required further down the line to fill in some gaps or guidance where appropriate. And guidance, let me tell you, is the antithesis of simplification. In this regard the UK is once more a cautionary tale.
That is before we take into account the forking of below thresholds existing legal practices. In some member States these are copied to an extent from the existing practice developed above thresholds. Over time I would expect the same to happen with the solutions contained in the Public Procurement Act, but that will take a long while. Until then we there will be more complexity arising from the split in approaches before (hopefully) things settling down on a level similar to the status quo.
Overall, I prefer the balance we are striking now between flexibility and prescriptiveness, but trying to sell the reform as creating a simpler procurement regulatory framework seems misguided.
*technically England, Wales and Northern Ireland.