Monthly Archives: March 2021

Albert Sanchez-Graells reflects on the governments proposals for the post-Brexit reform of public procurement law. Contrary to the goals of simplifying the system to foster innovation and value for money, he argues that the deregulatory proposals are likely to overcomplicate the system and increase the administrative burden.

Until recently, public procurement law and practice have rarely been at the forefront of public and political debates. The UK governments procurement reaction to the pandemic continues to generate scathing reportssuch as the most recent one on PPE procurement by the House of Commons Public Accounts Committeeand the emerging lessons show the need to strengthen this area of public governance. Against this background, it is timely to reflect on the governments recent proposals to reform public procurement law in the Green Paper Transforming Public Procurement.

The Green Paper is presented as an historic opportunity to overhaul [the UKs] outdated public procurement regime, a dividend from the UK leaving the EU, and sets out to deliver a much-touted bonfire of procurement red tape. The Green Paper is ambitious, seeks to transform procurement law and practice, and contains proposals that would alter a broad array of key elements of procurement regulation, such as procedural requirements, checks on the exercise of commercial discretion, or the oversight and avenues for legal challenge.

There are some useful proposals in the Green Paper, such as those seeking to ensure the timeliness of mandatory disclosures; the creation of a centralised information platform based on open contracting data standards and principles; an aspiration to enhance access to legal challenges with a focus on pre-contractual remedies rather than damages pay-outs; or more robust rules for the modification of contracts during their execution.

But there are also several major omissions for a document seeking to establish a comprehensive view of procurement law and the underpinning administrative architecture, such as the desired level of centralisation, cooperation, and specialisation of public buyers; the need to adopt a technologically robust platform for full cycle e-Procurement; or the interaction of the new rules with the possibility of deploying digital technologies to automate and enhance procurement governance.

A close analysis of the Green Paper reveals that there is very little truly innovative in its proposals. The paper is bizarrely EU-centric and, with some limited but clear exceptions concerning the reform of procurement procedures, most of the changes advocated are either a small tweak or correction of the current ruleswhich the UK had simply copied-out from EU lawor policy positions that could have been adopted under EU law. In other words, there is very limited or no Brexit-related dividend to be reaped through the implementation of the Green Paper.

More importantly, its implementation would not only not be transformative, but also result in an overcomplicated regulatory infrastructure. The Green Paper seeks to create a principles-based regulatory model with minimalistic statutory requirements and a significant offloading of detailed rules onto guidance, which enforceability generates significant legal uncertainty. In seeking to minimise the scope of statutory regulation and exponentially increase the volume of guidance, the Green Paper would not only not reduce the overall regulatory burden, but also create risks of rule dispersion, regulatory opacity and complexity.

To boost the exercise of commercial discretion, the paper also seeks to create limited but clear exceptions to its most crucial constraints, such as the requirements for contracts to be awarded based on the most economically advantageous tender, or the prohibition on the imposition of requirements not linked to the subject matter of the contract. The Green Paper does not formulate those exceptions but refers to future guidance. Unavoidably, a system based on rules and (limited) exceptions will generate more legal uncertainty than the current system. Such legal uncertainty could hardly contribute to an improvement upon the current situation.

Moreover, the proposals concerning the reform of the available tendering procedures would also create significant additional administrative burdens for both public buyers and economic operators. In seeking to create maximum flexibility for public buyers, the Green Paper effectively authorises them to create their own procurement procedure every time they tender a contract, which would immensely raise the administrative burden for public buyers unwilling to use but the most basic of procurement procedures, as well as raise the transaction and compliance costs for tenderers. The procedural complexity that would result may be suitable for extremely high-value and complex procurement procedures, but it seems that the Green Paper has sought to create a system of premium regulation that would be inadequate for most procurement procedures.

Further, the Green Paper would create tensions and contradictions in the oversight and legal challenge model. On the one hand, it aims to ensure that the new regulatory framework drives a culture of continuous improvement to support more resilient, diverse and innovative supply chains, and to establish a more innovation-friendly culture as well as practices among contracting authorities. Clearly, this could only happen if the regulatory system were one which created some room for experimentation, some tolerance for errors, and rewards for those embracing the new culture. On the other hand, the Green Paper seeks to make a future [legal] review system quicker, cheaper and therefore more accessible to suppliers, with decreased impact on delivery of public services. In that context, it is easy to see how the higher likelihood of legal challenge can create negative incentives for public buyers, which may be unwilling to experiment and innovate.

Another of the shortcomings of the Green Paper is the lack of governmental commitment to the proper and sustained funding of the training programme required to support its rollout. Although it recognises that the proposed reforms will not in themselves deliver unless contracting authorities act to ensure their commercial teams have the right capability and capacity to realise the benefits, the provision of a programme of training and guidance on the reforms is subject to future funding decisions. Arguably, the implementation of the proposals should be made conditional upon a binding commitment to a sufficient level of investment in training, in particular in the context of the uncertain economic circumstances ahead of us. Without such a firm commitment, the implementation of the Green Paper reforms would, at best, have little to no practical effect and, more likely, result in an increased burden for all agents involved, which would further erode the commercial capabilities in the public sector.

On the whole, the proposals are largely antithetical to its stated goals to speed up and simplify [UK] procurement processes, place value for money at their heart, and unleash opportunities for small businesses, charities and social enterprises to innovate in public service delivery. A substantial rethink is needed if the Green Papers goals are to be achieved and, more broadly, if the post-Brexit reform of UK public procurement is to deliver stronger accountability and governance mechanisms for this important area of expenditure of public funds, which is likely to become instrumental in delivering post-pandemic economic recovery plans.

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Note: the above draws on the authors article available here, to be published in the European Procurement & Public Private Partnership Law Review.

About the Author

Albert Sanchez-Graells is Professor of Economic Law and Director of the Centre for Global Law and Innovation, University of Bristol Law School.

Photo by Cytonn Photography on Unsplash.

Link:

Why the proposed post-Brexit procurement reform may not achieve the transformation it intends - British Politics and Policy at LSE

Andreas Prott

DAP (delivered at place) incoterms are the principal cause of delays in the aftermath of Brexit, according to Europa Worldwide MD Andrew Baxter.

Mr Baxter acknowledged the new EU-UK trading relationship had been incredibly tough for everyone, but said he remained convinced Europa had made the right call in adopting the delivered duty paid (DDP) model, as it mitigated many of the issues seen at borders.

While the implementation of this new product was more difficult than we expected, with a very challenging first six weeks, the product is now working very effectively, he said.

Export consignments are being delayed in our hub by around 24 hours while anticipated declarations are submitted, but beyond that they are more or less moving as normal; well be working over the next three weeks to remove the delays altogether.

Since the end of the transition period, a number of logistics operators have noted border officials using an inconsistent approach in applying the new rules.

Groupage loads have been particularly exposed to this problem, with food and drink shippers becoming increasingly wary of deliveries, for fear of one item within the load causing the entire shipment to be delayed, resulting in spoilage.

And sources in the automotive sector have spoken of near-identical shipments leaving the same factory but disembarking through different ports, one stopped, the other let through.

Mr Baxter told The Loadstar: Market disruption to groupage is principally caused by DAP shipping terms and the need for the receiving hub to contact the importer, establish a commercial relationship and get them to pay VAT, duty and customs fees prior to delivery.

This issue is creating massive backlogs in all groupage networks and is far and away the biggest issue.

Europa made significant investments in the run-up to Brexit: 2m in its Dartford transit warehouse, which increased capacity by 75%; as well as spending 3m on consultants, IT, recruitment, and training; and launching its DDP product, Europa Flow.

Under DDP, sellers take full responsibility for export and import formalities, transport, duties and taxes, which Mr Baxter said made it just as easy to buy from the UK as before Brexit.

Its been really tough, but it is now working. I firmly believe we now have the quickest and most reliable service in the market.

However, one source questioned the long-term viability of Europa Flow, telling The Loadstar it was reliant on a loophole within European regulations that would likely be closed.

But Mr Baxter said: Regime 42 is not a loophole, it is a standard EU process that has been in place for many years and is used to facilitate billions of euros of trade each year of non-EU imports into the EU.There is no reason to think this process will be changed in the near future.

The European Commission explained in an FAQ document published in January that Customs Procedure 42 (CP42) was a simplification procedure that provides for a deferral of paying import VAT on goods cleared upon arrival into the EU It can be used when goods being imported from outside the EU (eg, from GB) into an EU member state are subsequently being sold on to a company in another EU member state (ie an intra-community supply).

It added that the application of the customs procedure 42 and its requirements may vary according to the member state of importation concerned Imports into Northern Ireland can still benefit from the CP42 procedure if followed by an intra-community supply.

Read this article:

News / Finding the way through delays from a maze of post-Brexit red tape - theloadstar.com

With the collapse of international travel throughout the pandemic, combined with the Brexit rhetoric of taking back control, it might seem counter-intuitive to suggest that recent events have left workers more vulnerable to exploitative practices but this is exactly what happened in 2020.

The COVID-19 crisis has hit the labour market hard, with huge numbers of workers worldwide expected to lose their livelihoods, which has resulted in the most vulnerable become susceptible to modern slavery. During the first lockdown, construction was responsible for more suspected modern slavery cases than any other industry.

Unseen UK, the UKs leading charity on modern slavery, revealed 57 cases with 209 potential victims had been reported to its national helpline up 12 per cent on the same period in 2019.

The Biffa case serves as a reminder that slavery can even occur in companies where all the correct policies and procedures appear to have been implemented

At the same time, Brexit has exacerbated the risk of exploitation, with confusion over the UKs new points-based immigration system and the status of EU nationals creating a backdrop ripe for misinformation and intimidation.

This lack of clarity creates an environment where even those who manage to escape trafficking withdraw from society as far as possible out of fear over their rights and the risk of being deported. This makes them ideal candidates for re-exploitation.

There is a serious misconception that Brexit and the implementation of new border controls will cut down the amount of trafficking. But leaving the EU meant surrendering real-time access to European security systems, leading to what Unseen UK has labelled a downgrading of our ability to intercept traffickers. And exploitation is not restricted to foreign workers. Between July to September 2020, UK nationals accounted for the largest proportion of victims (35 per cent).

We urgently need to fight the myth that modern slavery is something that happens in countries far away and unlike our own. The news that Biffa an established household name and founding member of the Slave Free Alliance is being sued by three victims of modern slavery should serve as a stark warning to us all and raises troubling questions regarding what is going on in other businesses, and particularly smaller firms, away from the public gaze.

While public sector employers are much more aware of the issues, imposing obligations on their supply chains under the Modern Slavery Act, it has been reported that exploited workers are more likely to be concentrated in smaller residential schemes.

The Biffa case highlights that this is not just an ethical conundrum for businesses, but an emerging commercial risk too. The action against Biffa should encourage companies to start taking the responsibility to prevent forced labour within its workforce more seriously, for fear of the reputational damage that could come from similar lawsuits.

Its vital that as an industry we continue to raise awareness of this issue and the steps businesses can take to protect their employees, those they contract, and also their own commercial interests. A thorough understanding of the construction supply chain is an important start, including taking time to impose regular checks on recruitment and payment practises. The Biffa case serves as a reminder that slavery can even occur in companies where all the correct policies and procedures appear to have been implemented, so identifying potential weak points is a crucial aspect of protecting vulnerable workers.

Communication with staff is also important. This can increase awareness of the signs of modern slavery and create a culture where people feel comfortable reporting malpractice, helping to tackle these issues head on.

While COVID-19 and Brexit may have heightened the potential for exploitation in construction, this does not detract from our responsibility as an industry and society not to turn a blind eye to economic migrants who support our economy. Only by staying alive to the risks and working together to raise awareness of the signs of modern slavery can the industry put a stop to the exploitative practices that have escalated during the last year.

Joanna Rees is a partner in the construction team at Blake Morgan LLP

The rest is here:

COVID and Brexit have increased the risk of slavery it's time to fight back - Construction News

The Scottish Salmon Producers Organisation (SSPO) has published figures showing the losses incurred to the sector which produces the UKs top food export because of the extra paperwork, the new layers of bureaucracy, the delays and the confusion caused by the end of the Brexit transition phase.

The publication coincides with the second meeting of the UK and Scottish government joint task force on seafood exports, a task force which was set up at the urging of the SSPO.

The figures published today were presented to the task force this morning by Tavish Scott, chief executive of the SSPO.

Since January 1 2021, when the UK left the Brexit transition phase and exporters had to deal with the full effects of not being in the European single market, salmon farmers have experienced considerable delays, some of which have resulted in lost orders, failed deliveries, unharvested fish and heavily discounted products at market.

The sector has experienced an immediate loss of sales to the tune of 1,500 tonnes of product.

Scotlands salmon farmers prepared extensively for the changes and allocated additional resources to maintain the smooth and efficient supply process it previously enjoyed.

Scottish salmon farmers have also had no choice but to delay harvesting 700 tonnes of fish in order to minimise any of their high-quality product becoming spoiled or destroyed.

The sector has experienced various increasing costs which are unrelated to production, amounting to 200,000 in January alone. Such overheads are the cumulative result of additional export documents and resources, logistics costs, administrative and veterinary costs, and through lost custom as a result of reduce confidence in the supply timeline.

Scott said: This cannot be the new normal. Our members cannot guarantee reliable delivery times to the European Union, which is our biggest overseas market. The systems need to be streamlined and a lighter touch adopted on all sides to make sure we can continue to serve our European customers as we have in the past. If not, they will go elsewhere and we will lose both trade and customers.

The Health and Welfare of Atlantic Salmon course

It is vital that fish farm operatives who are responsible for farmed fish are trained in their health andwelfare. This will help to ensure that fish are free from disease and suffering whilst at the same timepromote good productivity and comply with legislation.

We are calling on both the UK and Scottish governments to work together with us and with the supply chain to make sure there are no more blockages in the system which prevent our members from getting their fish to market on time.

See the article here:

Scotland's salmon farmers count the cost of Brexit - The Fish Site

Shadow chancellor Anneliese Dodds has accused the government of furiously trying to manage expectations down over its post Brexit trading arrangements for financial services.

Ahead of Rishi Sunaks Budget,the Labour frontbencher said she was particularly concerned over the uncertainty surrounding the memorandum of understanding with the EU for the sector.

There was she added a need to see much more ambition from the Conservatives with one in every 14 UK workers, employed in financial or related professional services.

With the response to the coronavirus pandemic expected to dominate the chancellors statement to MPs, Dodds claimed the government seem to have been focused on a strategy of extrication over support for businesses and jobs.

The MP for Oxford East called on the government to go beyond the gimmicks around the challenges that young people face, arguing the chancellors flagship Kickstart Scheme aimed at helping the young unemployed sadly is failing.

Speaking to the PA news agency, Dodds said: Well I have to say Im particularly concerned about those aspects of our future trading relationship with the EU which havent yet been battened down by government.

Theyre meant to be concluding a memorandum of understanding with the EU 27 for trading arrangements for our financial and related professional services, now okay weve been told we cant have a running commentary around those arrangements, but it seems like the Conservative government is furiously trying to manage expectations down around what such a memorandum of understanding might include.

She added: Now we need to see much more ambition for financial services coming from the Conservative government. Actually one in every 14 UK workers, work in financial or related professional services, most of them outside London and yet we seem to see very little engagement from government around that issue.

We also sadly dont seem to have yet from government that clarity about whether theyll be ready, especially for the new changes to customs thatll be coming through in the summer. Ive warned for many months about the lack of customs officials and agents compared to what government promised would be in place by now.

Dodds said businesses had been calling for weeks and weeks for certainty around things like the business rates holiday extension and clarity over the furlough scheme.

She said: Well unfortunately the Conservatives seem to have been focused on a strategy of extrication, they seem to have been desperate at every moment to remove themselves from existing commitments, rather than planning for the future.

Amid reports the chancellor is considering freezing income tax thresholds for at least three years, Dodds said that on potential tax changes, Labour would need to look at any very carefully, adding: Certainly when the threshold for income tax has been increased thats had more of a positive impact on those who were better off than on those who were worse off.

She said: Above all we need to see a Budget thats focused on promoting jobs and business and livelihoods, not one thats actually hammering family finances as the chancellor seems to be doing at the moment.

She added: Not protecting jobs and businesses in that way will then have a negative impact on the public finances because well see less tax revenue coming in and I think government has got the balance wrong around this, they seem to be really taking their eye off the need to get people back into work, to keep people in work, to give businesses the confidence to keep going.

Instead they seem to be very much focused potentially on party political issues, how quickly they could get any tax changes through, thats not whats needed for our economy right now.

The government, she said, had done nothing about the situation with loans that particularly small businesses may have taken on.

Link:

Whitehall 'trying to manage expectations' over Brexit memo - The New European

Matthew Elliott, political adviser to Shore Capital

Matthew Elliott, political adviser to Shore Capital

Matthew Elliott, former chief executive of Vote Leave, the campaign group that in 2016 persuaded just enough UK voters they would be better off outside the EU, explained on Wednesday that the country now needs to think about the tangible benefits of Brexit to its financial services industry.

Elliott is now a political adviser to Shore Capital, the investment group whose founder Howard Shore is a prominent backer of the UKs Conservative party and supporter of Brexit.

Elliott offered his thoughts alongside Shores non-executive chairman Xavier Rolet, former head of the London Stock Exchange, and research chief Clive Black.

Sadly, those tangible benefits arent immediately obvious anywhere in their 2,800 words.

The three admit that whilst the question is quite straightforward, the answer is more involved, multi-faceted, multi-agency and multi-lateral.

It sounds like one of those games of 3D chess Elliotts old pal Dominic Cummings used to enjoy, possibly even a 4D game.

Apparently,

Continued here:

Euromoney Finance: The tangible benefits of Brexit - Euromoney magazine