It is our pleasure to introduce the sixth edition of The Government Procurement Review.
Our geographic coverage this year remains impressive, covering 19 jurisdictions, including the European Union, and the continued political and economic significance of government procurement remains clear. Government contracts, which are of considerable value and importance, often account for 10 to 20 per cent of gross domestic product in any given state, and government spending is often high profile, with the capacity to shape the future lives of local residents.
In the United Kingdom and European Union, the topic of Brexit still looms large. It is apparent that the United Kingdom will continue to observe the importance of procurement law both during and beyond the planned transitional period. Her Majesty’s Government has pronounced itself committed to the need for continued regulation of procurement, which is already reflected in the fact that three of the nine chapters of the Public Contracts Regulations 2015 concern domestic matters, as opposed to transposition of the EU Directives.
As indicated through a series of non-legislative procurement policy notes, the United Kingdom is seeking to regulate or alter procurement behaviour across a broad range of areas, including transparency and advertising, access for small and medium-sized enterprises (SMEs), and compliance with changing data-protection laws. At the time of writing, the government is consulting on possible measures to take into account, for procurement law purposes, the payment behaviour of larger firms in relation to their subcontractors, and increasing transparency and accountability. We believe that, whichever direction Brexit takes, detailed regulation of public procurement in the United Kingdom will continue.
Another prominent topic is the test for availability of damages in procurement cases, with the Supreme Court seemingly at odds with the EFTA Court on whether all or only ‘sufficiently serious’ breaches trigger a right to damages.
Looking further afield, other trends and developments that have caught our eye include:
a a pendulum swing towards deregulation in the United States on the back of President Donald Trump’s drive to reduce regulation;
b the possible renegotiation of NAFTA, including the incorporation of anti-corruption provisions (Mexico and Canada);
c a desire to open up procurement to SMEs and use public procurement as a tool to drive socio-economic transformations (South Africa and Chile);
d the growing importance of electronic procurement internationally (Chile and Venezuela); and
e an increasing recognition of the importance of public procurement in international trade deals (for example, the CETA between Canada and the EU, the CPTPP (although at the time of writing, continued US participation remains in doubt) and NAFTA).
When reading chapters regarding EU Member States, it is worth remembering that the underlying rules are set at the EU level. Readers may find it helpful to refer to both the European Union chapter and the respective national chapter to gain a fuller understanding of the relevant issues. To the extent possible, the authors have sought to avoid duplication between the European Union chapter and national chapters.
Finally, we wish to take this opportunity to acknowledge the tremendous efforts of the many contributors to this sixth edition as well as the tireless work of the publishers in ensuring a quality product is brought to your bookshelves in a timely fashion. We hope you will agree that it is even better than the fifth edition and we trust you will find it to be a valued resource.
Addleshaw Goddard LLP