Liam Fox's "Buy Brexit" award criterion is a political, not cultural fit

After my post yesterday about the Department of International Trade "Buy Brexit" award criteria and some discussions on twitter I have come to the conclusion that the award criterion is one of political instead of cultural fit. While the section is called "cultural fit", its content has nothing to do with culture. The full notice can be found here, but let's look at the actual text:

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The first three could easily have gone into selection (if applicable) or, if referring to the actual team delivering the contract either to the award criteria (where they appear to be) or to the contract as boiler plate performance clauses. I have the impression this is a small value contract subject to Regulation 111 of the Public Contracts Regulation 2015 which offers some flexibility.

As award criteria they are a poor choice, not helped by the also questionable (though legal) use of an interview to assess the bids. They are unclear, not objective and not easily measurable. Frankly they do not really help on the decision making. Plus, with an interview it is easy to be swayed by the most persuasive interviewee - even though said person may or may not be on the actual delivery team. It is not an approach I would suggest.

But the real problem is the final criteria on this "cultural fit" section. It has nothing to do with culture of the contractor but all with is political views. The Department of International Trade is effectively asking - and assessing - if each bidder is a "Brexiteer in good standing." This is illegal in two (maybe three) counts.

First, it is not connected with the subject matter of the contract (the litmus test for award criteria). The political views of the contractor or its employees are irrelevant for the purposes of assessing the merits of the bid being put forward. As such, it falls foul of Regulation 111 of the Public Contracts Regulations 2015.  This is, therefore, an illegal award criterion and one that should be called out for what it is: a "political fit" requirement. It is as illegal as requesting bidders to be affiliated with† a political party or based in local councils controlled by said party.

Then there is an issue of timing. The contract is to be fully delivered by the end of March 2017 but the criterion requires the contractor to "[b]e committed to the best possible outcome for the United Kingdom following its departure from the European Union." Well, we have not left yet and it is uncertain if once the process of Article 50 TFEU starts if it is revocable or not. So it appears the criterion is also disconnected from the contract subject by binding bidders to views on outcomes which may or may not happen in the future.

Finally, it is unclear if the contract is covered by EU public procurement rules or principles (which depend on value and also on the certainty of cross-border interest). If it is, then not awarding a contract to a bidder just because of an individual or institutional political views would also constitute a discriminatory award criteria.

Bottom line: let's call this criterion for what it is: a political, not cultural fit.