In the last few days a news story around 'pro-Brexit contract criteria' hit the headlines. In summary, the Department for International Trade, created just after Theresa May took office, has issued a controversial advertisement for contractors to bid for two opportunities for digital services. The controversy related to whether or not the Department was lawfully requiring bidders to be "pro-Brexit". In this article we analyse what exactly the Department was asking for, and generally whether or not contracting authorities can use this type of evaluation criteria.
What contracts was the Department advertising?
One opportunity relates to the feasibility of creating certain services around trade remedies as trade legislation is transferred from the EU to the UK, with an estimated contract value of £50,000. The service required is to predict and address where this transfer of work will lead to a shortfall in the Department's digital service provision.
The second advertisement investigates the feasibility of designing a system to manage intelligence on market access barriers, with the same estimated contract value.
Both contracts are therefore "sub-threshold" contracts for the purposes of the Public Contracts Regulations 2015. Nonetheless, even for sub-threshold contracts, public law principles such as ensuring best value for money, transparency, and good administration apply.
Was the Department insisting bidders be "pro-Brexit"?
This story drew press attention due to the unexpected evaluation criteria declared; a 15% weighting was allocated to the headline criterion of 'cultural fit', within which is the sub-criterion which has attracted all the attention: that contractors will be evaluated against being 'committed to the best possible outcome for the United Kingdom following its departure from the European Union'.
Understandably, commentators were concerned by what could easily be interpreted as a requirement for contractors to support Brexit. Assessing contractors' proposals against a requirement that they display certain political views is well established as a breach of EU procurement law. Additionally, EU procurement law requires that criteria are objective and the phrasing 'committed to the best possible outcome' appears subjective and difficult to evaluate.
It is not clear how contractors would be assessed against this criterion, i.e. what would a contractor need to demonstrate in its response in order to show commitment? As the language used is so general, it falls foul of both the requirements for objectivity and transparency. It could invite a range of responses. Hypothetically, one response could address political values, while another could provide an answer that deals more specifically with how, for example, the trade remedies regime needs to support the UK's interests. Applying the same evaluation and scoring approach to these two widely varying answers in an objective way would pose real difficulties. Ideally, in scenarios with overly general headline criteria, the objectivity of the criteria would be improved by providing an application form which detailed and expanded upon them, adding precision and objectivity to the assessment process.
Whether or not the criterion in question falls foul of the requirement for criteria to be linked to the subject matter of the contract is more difficult to determine. The advertised contracts are clearly for services to be provided in the context of the Department's mission to achieve the best possible outcome for the UK following Brexit and therefore it may well be possible to establish a link.
Overall, the recent news headlines provide a useful and topical illustration of the pitfalls and difficulties in constructing transparent evaluation criteria to ensure that suppliers are assessed fairly.
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