Despite Brexit, the EU have an interest in further collaborating with the UK, while the UK also need to pursue a cooperative approach because of their high level of convergences of interest and objectives in European security matters, writes Nele Marianne Ewers-Peters

Ewers-Peters, Nele Marianne

English

LSE Research Online

Why	the	proposed	post-Brexit	procurement	reformmay	not	achieve	the	transformation	it	intendsAlbert	Sanchez-Graells	reflects	on	the	government’s	proposals	for	the	post-Brexit	reform	of	publicprocurement	law.	Contrary	to	the	goals	of	simplifying	the	system	to	foster	innovation	and	value	formoney,	he	argues	that	the	deregulatory	proposals	are	likely	to	overcomplicate	the	system	andincrease	the	administrative	burden.Until	recently,	public	procurement	law	and	practice	have	rarely	been	at	the	forefront	of	public	andpolitical	debates.	The	UK	government’s	procurement	reaction	to	the	pandemic	continues	togenerate	scathing	reports—such	as	the	most	recent	one	on	PPE	procurement	by	the	House	ofCommons	Public	Accounts	Committee—and	the	emerging	lessons	show	the	need	to	strengthen	this	area	of	publicgovernance.	Against	this	background,	it	is	timely	to	reflect	on	the	government’s	recent	proposals	to	reform	publicprocurement	law	in	the	Green	Paper	‘Transforming	Public	Procurement’.The	Green	Paper	is	presented	as	‘an	historic	opportunity	to	overhaul	[the	UK’s]	outdated	public	procurementregime’,	‘a	dividend	from	the	UK	leaving	the	EU’,	and	sets	out	to	deliver	a	much-touted	‘bonfire	of	procurement	redtape’.	The	Green	Paper	is	ambitious,	seeks	to	transform	procurement	law	and	practice,	and	contains	proposals	thatwould	alter	a	broad	array	of	key	elements	of	procurement	regulation,	such	as	procedural	requirements,	checks	onthe	exercise	of	commercial	discretion,	or	the	oversight	and	avenues	for	legal	challenge.There	are	some	useful	proposals	in	the	Green	Paper,	such	as	those	seeking	to	ensure	the	timeliness	of	mandatorydisclosures;	the	creation	of	a	centralised	information	platform	based	on	open	contracting	data	standards	andprinciples;	an	aspiration	to	enhance	access	to	legal	challenges	with	a	focus	on	pre-contractual	remedies	rather	thandamages	pay-outs;	or	more	robust	rules	for	the	modification	of	contracts	during	their	execution.But	there	are	also	several	major	omissions	for	a	document	seeking	to	establish	a	comprehensive	view	ofprocurement	law	and	the	underpinning	administrative	architecture,	such	as	the	desired	level	of	centralisation,cooperation,	and	specialisation	of	public	buyers;	the	need	to	adopt	a	technologically	robust	platform	for	full	cycle	e-Procurement;	or	the	interaction	of	the	new	rules	with	the	possibility	of	deploying	digital	technologies	to	automateand	enhance	procurement	governance.A	close	analysis	of	the	Green	Paper	reveals	that	there	is	very	little	truly	innovative	in	its	proposals.	The	paper	is‘bizarrely	EU-centric’	and,	with	some	limited	but	clear	exceptions	concerning	the	reform	of	procurement	procedures,most	of	the	changes	advocated	are	either	a	small	tweak	or	‘correction’	of	the	current	rules—which	the	UK	hadsimply	‘copied-out’	from	EU	law—or	policy	positions	that	could	have	been	adopted	under	EU	law.	In	other	words,there	is	very	limited	or	no	Brexit-related	dividend	to	be	reaped	through	the	implementation	of	the	Green	Paper.More	importantly,	its	implementation	would	not	only	not	be	transformative,	but	also	result	in	an	overcomplicatedregulatory	infrastructure.	The	Green	Paper	seeks	to	create	a	‘principles-based’	regulatory	model	with	minimalisticstatutory	requirements	and	a	significant	‘offloading’	of	detailed	rules	onto	guidance,	which	enforceability	generatessignificant	legal	uncertainty.	In	seeking	to	minimise	the	scope	of	statutory	regulation	and	exponentially	increase	thevolume	of	guidance,	the	Green	Paper	would	not	only	not	reduce	the	overall	regulatory	burden,	but	also	create	risksof	rule	dispersion,	regulatory	opacity	and	complexity.To	boost	the	exercise	of	commercial	discretion,	the	paper	also	seeks	to	create	‘limited	but	clear’	exceptions	to	itsmost	crucial	constraints,	such	as	the	requirements	for	contracts	to	be	awarded	based	on	the	most	economicallyadvantageous	tender,	or	the	prohibition	on	the	imposition	of	requirements	not	linked	to	the	subject	matter	of	thecontract.	The	Green	Paper	does	not	formulate	those	exceptions	but	refers	to	future	guidance.	Unavoidably,	asystem	based	on	rules	and	(limited)	exceptions	will	generate	more	legal	uncertainty	than	the	current	system.	Suchlegal	uncertainty	could	hardly	contribute	to	an	improvement	upon	the	current	situation.British Politics and Policy at LSE: Why the proposed post-Brexit procurement reform may not achieve the transformation it intends Page 1 of 2		Date originally posted: 2021-03-01Permalink: https://blogs.lse.ac.uk/politicsandpolicy/post-brexit-procurement-reform/Blog homepage: https://blogs.lse.ac.uk/politicsandpolicy/Moreover,	the	proposals	concerning	the	reform	of	the	available	tendering	procedures	would	also	create	significantadditional	administrative	burdens	for	both	public	buyers	and	economic	operators.	In	seeking	to	create	maximumflexibility	for	public	buyers,	the	Green	Paper	effectively	authorises	them	to	create	their	own	procurement	procedureevery	time	they	tender	a	contract,	which	would	immensely	raise	the	administrative	burden	for	public	buyersunwilling	to	use	but	the	most	basic	of	procurement	procedures,	as	well	as	raise	the	transaction	and	compliancecosts	for	tenderers.	The	procedural	complexity	that	would	result	may	be	suitable	for	extremely	high-value	andcomplex	procurement	procedures,	but	it	seems	that	the	Green	Paper	has	sought	to	create	a	system	of	premiumregulation	that	would	be	inadequate	for	most	procurement	procedures.Further,	the	Green	Paper	would	create	tensions	and	contradictions	in	the	oversight	and	legal	challenge	model.	Onthe	one	hand,	it	aims	to	‘ensure	that	the	new	regulatory	framework	drives	a	culture	of	continuous	improvement	tosupport	more	resilient,	diverse	and	innovative	supply	chains’,	and	‘to	establish	a	more	innovation-friendly	culture	aswell	as	practices	among	contracting	authorities.’	Clearly,	this	could	only	happen	if	the	regulatory	system	were	onewhich	created	some	room	for	experimentation,	some	tolerance	for	errors,	and	rewards	for	those	embracing	the	newculture.	On	the	other	hand,	the	Green	Paper	seeks	‘to	make	a	future	[legal]	review	system	quicker,	cheaper	andtherefore	more	accessible	to	suppliers,	with	decreased	impact	on	delivery	of	public	services’.	In	that	context,	it	iseasy	to	see	how	the	higher	likelihood	of	legal	challenge	can	create	negative	incentives	for	public	buyers,	which	maybe	unwilling	to	experiment	and	innovate.Another	of	the	shortcomings	of	the	Green	Paper	is	the	lack	of	governmental	commitment	to	the	proper	andsustained	funding	of	the	training	programme	required	to	support	its	rollout.	Although	it	recognises	that	the	proposedreforms	‘will	not	in	themselves	deliver	unless	contracting	authorities	act	to	ensure	their	commercial	teams	have	theright	capability	and	capacity	to	realise	the	benefits’,	the	provision	of	a	programme	of	training	and	guidance	on	thereforms	is	‘subject	to	future	funding	decisions’.	Arguably,	the	implementation	of	the	proposals	should	be	madeconditional	upon	a	binding	commitment	to	a	sufficient	level	of	investment	in	training,	in	particular	in	the	context	ofthe	uncertain	economic	circumstances	ahead	of	us.	Without	such	a	firm	commitment,	the	implementation	of	theGreen	Paper	reforms	would,	at	best,	have	little	to	no	practical	effect	and,	more	likely,	result	in	an	increased	burdenfor	all	agents	involved,	which	would	further	erode	the	commercial	capabilities	in	the	public	sector.On	the	whole,	the	proposals	are	largely	antithetical	to	its	stated	goals	‘to	speed	up	and	simplify	[UK]	procurementprocesses,	place	value	for	money	at	their	heart,	and	unleash	opportunities	for	small	businesses,	charities	andsocial	enterprises	to	innovate	in	public	service	delivery’.	A	substantial	rethink	is	needed	if	the	Green	Paper’s	goalsare	to	be	achieved	and,	more	broadly,	if	the	post-Brexit	reform	of	UK	public	procurement	is	to	deliver	strongeraccountability	and	governance	mechanisms	for	this	important	area	of	expenditure	of	public	funds,	which	is	likely	tobecome	instrumental	in	delivering	post-pandemic	economic	recovery	plans.___________________________________Note:	the	above	draws	on	the	author’s	article	available	here,	to	be	published	in	the	European	Procurement	&	PublicPrivate	Partnership	Law	Review.About	the	AuthorAlbert	Sanchez-Graells	is	Professor	of	Economic	Law	and	Director	of	the	Centre	for	Global	Lawand	Innovation,	University	of	Bristol	Law	School.				Photo	by	Cytonn	Photography	on	Unsplash.British Politics and Policy at LSE: Why the proposed post-Brexit procurement reform may not achieve the transformation it intends Page 2 of 2		Date originally posted: 2021-03-01Permalink: https://blogs.lse.ac.uk/politicsandpolicy/post-brexit-procurement-reform/Blog homepage: https://blogs.lse.ac.uk/politicsandpolicy/

UK should prioritise NATO, Euro-Atlantic cooperation and resilience in post-Brexit European security

http://eprints.lse.ac.uk/110107/1/politicsandpolicy_post_brexit_procurement.pdf

UK should prioritise NATO, Euro-Atlantic cooperation and resilience in post-Brexit European security

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