‘Buy Brexit?’ Does ‘Cultural Fitness’ Every Minute An Evaluation Measure Breach Eu As Well As Uk Populace Procurement Law?

Albert Sánchez Graells, Senior Lecturer inwards Law, University of Bristol*

Heather Stewart in The Guardian has reported that the UK's Department for International Trade is tendering contracts where they await that tech companies should convey the correct ‘cultural fit’ if they desire to hold upward hired. This is interpreted inwards the intelligence study as a clear machinery whereby "Firms bidding for authorities contracts [are] asked if they dorsum Brexit". It is indeed a worrying requirement due to the clear adventure of unfettered discretion as well as ensuing discrimination that such 'cultural fit' requirement creates. In my opinion, the requirement runs reverse to both European Union as well as United Kingdom of Great Britain as well as Northern Ireland world procurement rules. I volition seek to proceed this send as jargon costless as possible as well as bound the technical details of my legal assessment as much as possible. However, this is a rather technical surface area of economical law, as well as then some technicalities volition hold upward unavoidable.

Specifically, the tenders inwards question introduce evaluation criteria nether the category of 'cultural fit' (which carries a weight of 15% of the full points), alongside which tenderers are to hold upward assessed based on whether they are "committed to the best possible outcome for the United Kingdom of Great Britain as well as Northern Ireland next its difference from the European Union". The other sub-criteria inwards this grouping require tenderers to "be focussed plenty to stick to the chore at manus as well as non hold upward side-tracked inwards a vast as well as quick-moving field; hold upward committed as well as hard-working, to deliver nether fourth dimension pressures; as well as hold upward enthused past times the prospect of working at the frontline inwards such an exciting as well as dynamic area". These are meant to hold upward assessed on the footing of a written proposal as well as presentation (ie a beauty contest).

All of these sub-criteria enhance serious concerns from the perspective of world procurement best practice, mainly due to (i) the difficulties they create for the contracting ascendency to send out an objective assessment at evaluation phase (which makes the evaluation plough to a determination of who tin write the best 'essay'), as well as (ii) their forward-looking nature as well as difficulty to monitor ex post during the implementation of the contract (which would brand them to a greater extent than suited for contract compliance or termination clauses, rather than evaluation criteria, as well as which also enhance the adventure of awarding the contract to the tenderer shown to hold upward the best liar).

Additionally, these criteria have, at best, a really tenuous link to the dependent area affair of the contract as well as rather elevate to full general characteristics of the tenderer that, if so, should hold upward assessed at alternative rather than evaluation stage. This is of import because the criteria are non formulated inwards relation to the specific members of the squad that volition furnish the services, but rather left broad opened upward as a reference to the tenderer as a whole. More importantly, the specific inquiry nearly the tenders' commitment to the best possible outcome for the United Kingdom of Great Britain as well as Northern Ireland next its difference from the European Union (as good as the inquiry on enthusiasm) relates to attitudes that are merely unobservable for the contracting authority. 

These issues disqualify the 'cultural fit' questions as valid evaluation criteria nether electrical current law. Here, it is of import to stress that the legal analysis depends on the value of the tendered contracts. Different rules apply to contracts higher upward or below specified value thresholds--which, for services contracts are currently railroad train at £106,047 (or €135,000, see here). The contract tendered past times the Department for International Trade indicates that "We are aiming at no to a greater extent than than £50,000 for the totality of the Discovery, but are opened upward to proposals from suppliers who may experience that extra resources are justifiable given the ambit of the task." This creates uncertainty as to the relevant legal rules, especially if the honour results inwards a contract of a value higher upward the threshold. This would suggest that the United Kingdom of Great Britain as well as Northern Ireland Government should hold upward inwards compliance with the most stringent rules for contracts higher upward thresholds to hold upward on the rubber side. Just inwards case, though, let's consider both sets of rules.

Contracts below thresholds

The honour of contracts below the relevant value thresholds must comply with the requirements of reg. 111 of the Public Contracts Regulations 2015 (see comment here) as well as the full general requirements derived from full general principles of European Union law, such as non-discrimination, equal treatment, transparency as well as competition. Reg. 111(5) PCR2015 indicates that "contracting authorities may enquire candidates to response suitability assessment questions exclusively if each such inquiry is—(a) relevant to the subject-matter of the procurement; as well as (b) proportionate." And reg. 111(7) PCR determines that, inwards doing so, the contracting ascendency "shall convey regard to whatever guidance issued past times the Minister for the Cabinet Office".

On that point, it is of import to acquit inwards heed the guidance issued past times the Crown Commercial Service on alternative questionnaires. In para [57], concerned with project-specific questions such as the ones nosotros are discussing, the Guidance indicates that the contracting ascendency "can enquire farther project-specific questions relating to the potential supplier’s technical as well as professional person ability. Any project-specific questions asked must hold upward relevant as well as proportionate to the contract. You should elevate to the listing of possible topics roofing technical as well as professional person ability." Importantly, these requirements concerning technical as well as professional person mightiness are fundamentally express to assessing suppliers' past times performance, on which at that spot is additional guidance.

Overall, these requirements bespeak that contracting authorities tin exclusively assess the reliability of tenderers inwards relation to their previous experience as well as exclusively inwards as well as then far as this is linked to the dependent area affair of the contract as well as proportionate to its value. In my opinion, quest tenderers to response questions concerning their commitment to the best possible outcome for the United Kingdom of Great Britain as well as Northern Ireland next its difference from the European Union as well as their enthusiasm to piece of work with the Department for International Trade inwards carrying out Brexit-related analysis is neither linked to the subject-matter of the contract, nor verifiable according to the standards applicable to the assessment of technical as well as professional person aspects of the tenderers' ability.

This impossibility to verify commitment as well as enthusiasm as business office of the evaluation of the tenderers is jump to also breach full general principles of European Union (public procurement) law, inwards exceptional the regulation of non-discrimination. If the contract below thresholds is, nonetheless, of cross-border interest, this is an additional legal footing for the illegality of the work of 'cultural fit' criteria.

Contracts higher upward thresholds

Where the contract is higher upward the relevant thresholds (ie for services exceeding £106,047 or €135,000), the illegality of the work of 'cultural fit' criteria becomes fifty-fifty clearer. This analysis is of import inwards this specific illustration exclusively if the contract significantly exceeds the initial value of £50,000, but this word is of import inwards illustration the Department for International Trade (or the United Kingdom of Great Britain as well as Northern Ireland Government to a greater extent than generally) is piloting the work of 'cultural fit' as a broader procurement policy. There are ii ways inwards which 'cultural fit' could hold upward used inwards this setting; either as a alternative criterion (where the contracting ascendency is screening the tenderers as a whole) or as an honour criterion (where the contracting ascendency is screening the specific offering and/or the specific squad proposed past times the service provider).

If considered as a selection criterion, the relevant rules are those of reg. 58 of the Public Contracts Regulations 2015 (see comment here) as well as Art 58 of Directive 2014/24/EU. Both of these provisions must hold upward assessed inwards lite of the illustration constabulary of the Court of Justice of the European Union (ECJ). The relevant requirements derived from these rules are that contracting authorities tin exclusively impose requirements aimed at assessing technical as well as professional person mightiness with the travel of "ensuring that economical operators possess the necessary human as well as technical resources as well as experience to perform the contract to an appropriate lineament standard" [reg. 58(15) PCR2015], as well as provided they are "related as well as proportionate to the subject-matter of the contract" [reg. 58(4) PCR2015]. 

'Cultural fit' alternative criteria are non inwards draw with these requirements. The ECJ was clear inwards its famous Dutch coffee case (C-368/10, EU:C:2012:284, paras 105-108) inwards establishing that alternative criteria that relate to full general policies or attitudes of the tenderer (in that case, whether they "fulfil[led] the criteria of sustainable purchasing as well as socially responsible draw organisation [and] contribute[d] to improving the sustainability of the java marketplace as well as to environmentally, socially as well as economically responsible java production") are non allowed. I convey no incertitude that the 'cultural fit' criteria used past times the Department for International merchandise inwards this case, as well as whatever criteria that to a greater extent than to a greater extent oftentimes than non aim to enshroud tenderers on the footing of their commitment to specific outcomes or their enthusiasm inwards their generation volition as autumn foul of United Kingdom of Great Britain as well as Northern Ireland as well as European Union world procurement law.

'Cultural fit' questions tin also hold upward seen to aim to construction an assessment some "quality-based" award criteria, which are regulated past times reg. 67 of the Public Contracts Regulations 2015 (see comment here) as well as Art 67 of Directive 2014/24/EU. Both of these provisions must hold upward assessed inwards lite of the ECJ illustration constabulary as well. There are several aspects to consider--such as, again, the link of the honour criteria to the dependent area affair of the contract--but the relevant business office of the electrical current domestic rules specifies that "Award criteria shall—(a) ensure the possibility of effective competition; as well as (b) hold upward accompanied past times specifications that allow the information provided past times the tenderers to hold upward effectively verified inwards gild to assess how good the tenders reckon the honour criteria."

Once more, the impossibility of verifying commitment or enthusiasm exclude the possibility of using 'cultural fit' as an honour criterion. This is inwards draw with the full general requirements railroad train past times ECJ illustration law, which exclude the work of criteria that furnish the contracting ascendency with unlimited discretion [for extended discussion, reckon H5N1 Sanchez-Graells, Public procurement as well as the European Union competitor rules, sec edn (Oxford, Hart, 2015) 378 as well as ff].

Final remarks

For the reasons higher upward (and another technical ones I am happy to explore farther if it is of interest), I recollect that the Government's policy (or the Department for International Trade tenders, if this is an isolated incident) constitutes a clear infringement of both United Kingdom of Great Britain as well as Northern Ireland as well as European Union world procurement rules.

Further, inwards my view, the job that underlies the specific telephone band for tenders for advisory services issued past times the Department for International Trade is the impossibility of obtaining a perfect exchange betwixt in-house capabilities as well as contracted-out consultancy. While the Government may hold upward inwards a improve seat to force for its political agenda inwards steering the piece of work of the civil service (which is in all probability a affair for a split discussion), it is clearly inwards a really weak seat to do as well as then when it is contracting-out (or in?) advisory capabilities.

All procurement rules allow Blue Planet sector to do is to specify the services it aims to acquire. And this implies that the service itself needs to hold upward susceptible of specification. Where non-contractible elements drive the determination to contract, world procurement is merely non a useful tool. The Government may convey difficulties edifice upward its in-house capabilities, or fifty-fifty 'reining in' the civil service, but they volition definitely non convey it easier through procurement.

Barnard & Peers: chapter 27

Art credit: Peter Brookes

*Reblogged from the ‘How to Crack a Nut’ blog

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