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The government has highlighted contractors’ views on Brexit as part of a “cultural fit” requirement for two short-term contracts with the Department for International Trade (DIT).
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Firms have been invited to bid to investigate designing a system to manage intelligence on market access barriers and on creating services around trade remedies following the UK’s exit from the EU, as revealed by The Guardian newspaper.
The contracts are part of ongoing work as prime minister Theresa May prepares to trigger Article 50 later this month and officially begin the process of negotiating the terms of Brexit.
As part of the selection criteria for the tender, which closed earlier this week, the DIT set out criteria for evaluating the “cultural fit” of businesses bidding for the contracts.
This includes backing the country’s exit from the EU. Bidding companies “must be committed to the best possible outcome for the UK following its departure from the EU”, the requirements stated.
Other principles that bidders must adhere to include being “focused enough to stick to the task at hand” and “being enthused at the prospect of working at the front line in such a dynamic and exciting area”.
The DIT, like the Department for Exiting the European Union, was set up specifically to oversee the Brexit process and ensure it goes as smoothly as possible.
A DIT spokesperson told The Guardian that ongoing recruitment is “enabling us to build a team from the widest pool of talent in the civil service and externally, across a range of policy and corporate expertise and international experience”.
“The contract advertised is for a team to design a system to manage intelligence on market access barriers,” the spokesperson said, adding that all contractors working with the government would be required to “act with objectivity and impartiality under the civil service code”.
But legal experts suggest that such a clause in a public procurement process is illegal under EU law.
"In my opinion, the requirement runs contrary to both EU and UK public procurement rules," said Albert Sanchez-Graells, senior lecturer in law at the University of Bristol Law School and a member of the European Commission Stakeholder Expert Group on public procurement, writing in a blog post.
He said that such a criteria is difficult to assess objectively, and equally difficult to monitor after the contract is awarded.
"The specific question about the tenders' commitment to the best possible outcome for the UK following its departure from the European Union relates to attitudes that are simply unobservable for the contracting authority," he said.
"I think that the government's policy (or the Department for International Trade tenders, if this is an isolated incident) constitutes a clear infringement of both UK and EU public procurement rules."
Pedro Telles, senior lecturer in law at Swansea University, said in a blog post that such criteria suggested government decision-makers are already starting to ignore EU procurement laws in anticipation of Brexit. But he added that the clause is is also illegal under the UK's own legislation, citing regulation 111 of the Public Contracts Regulation 2015.
"Regulation 111 is a purely national provision covering contracts that would not be subject to EU law due to their low value. There are grounds to challenge this award criteria and they should be used by any aggrieved bidder," he said.
"The bottom line for me is that we may be finally seeing in this instance the start of a progressive disregard for EU law rules."
Earlier this year, trade body TechUK set out what it believed were the Brexit negotiation priorities for the UK IT sector. These included ensuring the best possible access to the EU market, EU talent and the need for laws around cross-border data transfers.
According to a survey by the Confederation of British Industry (CBI) late last year, businesses are committed to continue to thrive post-Brexit.
Speaking at the CBI annual conference in London last November, CBI president Paul Drechsler said businesses were “100% committed to making the best of Brexit”. He also called on the government to be clearer on its plans for exiting the EU.
“We’re not asking for a running commentary, but we are looking for clarity and, above all, a plan,” he said. “For many firms, it’s not about a hard or soft Brexit, but a smooth Brexit.”