Duty owed to economic operators from certain other (non-EEA) states under Reg. 90 Public Contracts Regulations 2015

Similarly to reg.89, reg.90 of the Public Contracts Regulations 2015 (PCR2015) creates a duty owed to economic operators from certain other (non-EEA) states whereby contracting authorities must comply with the provisions of Part 2 PCR2015; and any enforceable EU obligation in the field of public procurement in respect of a contract or design contest falling within the scope of Part 2 PCR2015.

Under reg.90(1) PCR2015, this duty is owed also to an economic operator from a GPA state, but only where the GPA applies to the procurement concerned; and to an economic operator which is not from an EEA state or a GPA state, but only if a relevant bilateral agreement applies. This comes to specify the duty of equal treatment and non-discrimination that the GPA and bilateral international trade agreements can create.

For the purposes of duties owed to economic operators from GPA state (ie any country, other than an EEA state, which at the relevant time is a signatory to the GPA), the GPA applies to a procurement if the procurement may result in the award of a contract of any description; and at the relevant time a GPA State has agreed with the EU that the GPA shall apply to a contract of that description, and the economic operator is from that GPA state [reg.90(2)]. This could have been expressed simply and more directly by reference to the schedules of coverage of the GPA (available here) as amended from time to time.

For the purposes of duties owed to third country economic operators, a relevant bilateral agreement applies if there is an international agreement, other than the GPA, by which the EU is bound; and in accordance with that agreement, the economic operator is, in respect of the procurement concerned, to be accorded remedies no less favourable than those accorded to economic operators from the EU in respect of matters falling within the scope of the duty owed in accordance with reg.89 PCR2015 [reg.90(3)]. 

In my view, reg.90(3) PCR2015 could have been expanded to bilateral agreements that may bind the UK without necessarily binding the EU (either currently or in the future, which is at least theoretically are possible, depending on how the EU exercises its trade competences in the future; for discussion, see Y Devuyst "European Union trade policy after the Lisbon Treaty: the Community method at work" in N Witzleb, A Martinez Arranz & P Winand (eds), The European Union and Global Engagement: Institutions, Policies and Challenges (Cheltenham, Edward Elgar, 2015) 138-158].

More generally, the normative question of whether all candidates and tenderers should be afforded the same protection regardless of their nationality remains open and is a complex issue in trade regulation. At the EU level, the proposal of the European Commission to potentially limit access to procurement markets (and hence, the available remedies) by third country economic operators has not gained as much traction as could have been expected when it was first proposed [for discussion, see K Dawar, "The Proposed ‘Buy European’ Procurement Regulation: An Analysis" (2012) 11 Global Trade Alert 89-97].

In my view, opting for universal protection of tenderers could incentivise participation by economic operators from jurisdictions without strong (legal) trade links with the UK and the EU and, more generally, it is hard to understand why contracting authorities would be allowed to disregard the legitimate expectations of economic operators genuinely interested in a public tender--which could strengthen competition and challenge incumbents in cosy relationships with the public sector. However, this is clearly a normative point and, as mentioned regarding reg.89 PCR2015, it is clearly not the UK (English) tradition to give extensive rights of claim against the public sector. Hence, the scope of protection devised in reg.90 PCR2105 needs to be interpreted in strict terms