The Government Procurement Review: Editor's Preface

It is a pleasure to be writing the preface to the 10th edition of The Government Procurement Review.

We have contributions this year from 14 jurisdictions including the European Union, with chapters from countries as diverse as the United States, Saudi Arabia and the Dominican Republic. Three main themes emerge from the contributions to this edition, as follows:

  1. Law reform. Contributors report ongoing reform processes in a number of our subject territories. In this context, it is interesting to note the difference in objectives as between (for example) the United States (with an emphasis on domestic preferences), Saudi Arabia (encouraging foreign investment) and the United Kingdom (which is aiming to transform public procurement following the United Kingdom's exit from the European Union). There is also something of a curiosity in the Dominican Republic where political parties are to be brought within the scope of procurement law.
  2. Covid-19. The response to the covid-19 pandemic relevant to government procurement includes the use of urgent procedures. Some challenges, notably in Austria (where testing and analysing services were publicly tendered but the outcome of many of these procedures was challenged successfully) and in the United Kingdom (where there were allegations of procurement practices favouring politically well-connected parties and consequent challenges) are noteworthy. In the United States, questions remain about the future of the executive order requiring federal contractors to adhere to covid-19 prevention measures, such as employee vaccination mandates. The European Union swiftly published interpretative guidelines on how to use exemptions for urgent procurements required due to the pandemic.
  3. Corporate social responsibility and sustainability. These factors obviously constitute an increasingly prominent set of issues in the minds of consumers and in public opinion, and therefore in the minds of large businesses and contracting authorities. For example:
    • in Malta, the Second National Action Plan for Green Public Procurement has been published, which states Malta's commitment to reduce the environmental impact of purchases made by the Maltese government and aims progressively to increase uptake of green products in 90 per cent of tenders;
    • in Austria, a number of legislative issues are aimed at mandating the use of clean vehicles and other green commitments, as well as public health and regional policy goals;
    • in Germany, the federal government has taken steps to promote climate-friendly procurement, which follow reforms on energy efficiency that require public authorities to procure the most efficient product; and the federal legislature has also adopted new rules on the procurement of clean and energy-efficient road transport vehicles, requiring that a certain quantity of the total number of vehicles that public authorities procure be clean and energy efficient;
    • in the United States, the current administration has already released an executive order directing federal agencies to reach 100 per cent carbon pollution-free energy at federal facilities by 2030, a zero-emission vehicle fleet by 2035 and a net-zero emissions building portfolio by 2045, and requires major federal suppliers publicly to disclose emissions and set reduction targets; and
    • in the United Kingdom, the government has stated that a minimum of 10 per cent of available marks in procurement evaluation should be reserved for social value considerations.

Regarding geopolitical issues in light of the invasion of Ukraine, it is probably too early to see much in the way of procurement law effects (sanctions are, of course, beyond the remit of this volume). However, in the United Kingdom, government policy notes have been published as regards how public bodies should go about reviewing their contract portfolios, advising that, where a Russian or Belarusian prime contractor is identified, the public body should consider terminating or winding down the contract following a legally compliant process. It is also noteworthy that the US chapter of this edition calls out, with regard to domestic preferences policy, 'reliance on sources in areas controlled by North Korea, China, Russia or Iran' and 'procuring products from entities that have contracted with such countries'. The US government continues to focus on sourcing restrictions from a national security and supply chain risk mitigation standpoint as well as with respect to domestic preferences. The current administration has also initiated a government-wide initiative to review its interpretation and enforcement of domestic preferences.

In England, the procurement law reform process mentioned above continues apace, following the publication in December 2021 of the Cabinet Office's summary of the 500 responses received to its Green Paper on Procurement Reform. Draft legislation is the next step, which may be available during the coming months, although readers can be assured that there will be a lengthy transition period. While there is the potential for inefficiencies and increased costs if the devolved administrations in the United Kingdom were to take divergent approaches to procurement law reform, efforts are being made to coordinate and avoid such issues.

Looking ahead at the level of international agreements, Brazil has filed its proposal to join the World Trade Organization Agreement on Government Procurement.

When reading chapters regarding EU Member States, it is worth remembering that the underlying rules are set at EU level. Readers may find it helpful to refer to both the EU chapter and the relevant national chapter to gain a fuller understanding of the relevant issues. As far as possible, the authors have sought to avoid duplication between the EU chapter and national chapters.

Finally, we wish to take this opportunity to acknowledge the tremendous efforts of the many contributors to this 10th edition as well as the tireless work of the publishers in ensuring that a quality product is brought to your bookshelves in a timely fashion, particularly given the continuing effects of the pandemic and consequent restrictions in most jurisdictions. We trust you will find it to be a valuable resource.

Jonathan Davey
Addleshaw Goddard LLP
London
May 2022

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