Following the UK’s departure from the European Union, on 1 January 2021 the transition period will come to an end. From that date onwards, the UK will have severed its direct ties with the EU procurement law regime and the UK will, as a consequence, have far greater autonomy to regulate its own domestic procurement laws and procedures. Over recent years the UK Government has expressed concern about aspects of the current EU regulated approach to procurement and in particular procurement disputes. In such circumstances, what options are open to the Government? In this blog post, we consider areas for possible reform. First, it will be helpful to explain why the Government is concerned; why is reform being considered?
In a nutshell, there is a general view that the current process for resolving procurement disputes is unsatisfactory. How so? Amongst other things:
- claims are often prohibitively expensive and lengthy – in part owing to the fact that proceedings are litigated through the Technology and Construction Court (which is part of the High Court);
- the disclosure process is complicated and, arguably, in some instances disproportionate to the issues in dispute;
- proceedings are often protracted given the procedural issues in connection with the protection of bidder commercially sensitive information; and
- time limits for bringing proceedings are relatively short often meaning that there is a pressure to issue proceedings in order to protect a party’s position.
What reforms might address these problems? What options are open to the Government as it becomes a freestanding member of the Government Procurement Agreement (GPA) in its own right?
DLA Piper has considered some of the potential options for reform in its recently published procurement law reform paper: https://inform.dlapiper.com/10/4391/uploads/dla-piper-procurement-law-reform-june-2020.pdf. Amongst other ideas, we considered whether:
- the High Court remained the appropriate forum for resolving procurement disputes and whether instead a specialist tribunal would be better placed for such matters;
- the means of disclosure and witness evidence remained adequate and whether instead procurement disputes could adopt the evidential process employed in claims for judicial review.
- consideration should be given to abolishing costs awards (as part of a tribunal type structure) so in most cases each party bears their own costs but is not at risk of the others or, alternatively, whether some form of costs capping should be introduced; and
- there should be reforms to the protection of confidential information to reduce some of the procedural tussles over, for example, the establishment of confidentiality rings and the protection of confidential information.
For a detailed consideration of such issues, readers should review the paper in full. Procurement law practitioners and other interested stakeholders also understand that, relatively, soon, the Government is likely to publish a white paper setting out the options for reform and canvassing views from interested stakeholders.
Notwithstanding the shortfalls of the current regime for resolving procurement disputes, it does at least provide for procedural rigour and forensic analysis of a contracting authority’s procurement conduct. Any reforms will therefore need to balance the legitimate desires on the part of contracting authorities to improve the efficacy of procurement challenges in general with the rights of aggrieved tenderers. Watch this space …