13 April 2018
Procurement law has featured heavily in the news this week after it was widely reported that the incumbent British supplier had lost the contract for producing the iconic, blue, post-Brexit British passport, which is to be awarded to a French company. Many media outlets appeared outraged that the contract to produce passports could be awarded to a foreign supplier, but this reaction ignores the existing public procurement regime, which requires all public sector contracts above a certain value to be open to and advertised to suppliers across Europe in the Official Journal of the European Union.
The government was obliged to award the passport contract to the “most economically advantageous” bid – this definition takes into account both price and quality criteria – which in this case was the bid submitted by the French supplier. It is a fundamental principle of procurement law that all bidders must be treated equally and without discrimination, so it would have been unlawful for the government to have favoured a British company for this contract.
The current procurement regime is derived from European directives and at the moment it is unclear how it will be affected by Brexit. There have always been detailed provisions governing how public contracts will be awarded in the UK, and that is unlikely to change, but whether it will be permissible to favour British suppliers after Brexit, and what impact this will have on competition and value for money for the public sector, remains to be seen.