Regulation 24 – Conflicts of interest

Commentary

Regulation 24 transposes (well, implements) Article 24 of Directive 2014/24/EU in England, Wales and Northern Ireland. Article 24 contains a traditional “directive” for Member States by establishing the objective (avoiding conflicts of interest) without prescribing the specific measures needed apart from a few constraints. As such, lawmakers have to design a system appropriate for their jurisdictions where appropriate measures are taken. Article 24 establishes a de minimis rule, allowing Member States to go farther in defining further cases as conflicts of interest.

For England, Wales and Northern Ireland paragraph 1 defines that contracting authorities are to deal with conflict of interests in procurement, but does not provide detail on how to achieve it. Contracting authorities are tasked with preventing, identifying and remedying conflicts of interest arising in the conduct of procurement procedures as to avoid any distortion of competition and to ensure equal treatment for all economic operators. Further detail for contracting authorities was probably appropriate to make their life easier and to increase legal certainty.

Paragraph (b2) identifies two target areas where conflict of interest may arise according to the law: i) the conduct of procurement officers; ii) the involvement of external actors in the conduct of the procurement procedure. It is interesting to note that the conflict of interest extends to the external actors (ie, consultants) but only in the conduct of the procurement procedure. This can be explained by the fact that Regulation 41 PCR2015 and Article 41 of Directive 20141/24/EU deal with the potential conflict of interest where an economic operator was involved in drafting the technical specifications.

In eVigilo [C-538/13, EU:C:2015:166], the CJEU set a very high bar (paras 37 to 46) for contracting authorities to clear in allegations of bias and conflict of interest thus leading to the conclusion that the general principles of public procurement include an obligation of investigating of related allegations. For a more detailed discussion about Article 24 of Directive 2014/24/EU please see A Sanchez-Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 369-373.

Last modified: July 5, 2016 by Pedro Telles

24.—(1) Contracting authorities shall take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators.

(2) For the purposes of paragraph (1), the concept of conflicts of interest shall at least cover any situation where relevant staff members have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement procedure.

(3) In paragraph (2)—

relevant staff members” means staff members of the contracting authority, or of a procurement service provider acting on behalf of the contracting authority, who are involved in the conduct of the procurement procedure or may influence the outcome of that procedure; and

procurement service provider” means a public or private body which offers ancillary purchasing activities on the market.