Government Says Concession Rules Now Match UK Law
The Government has defended changes to concession contract rules, saying direct awards will only be allowed in specific circumstances where a competitive tender has failed to produce a suitable bid. It says safeguards remain in place, including written reports to Parliament, published award notices and access for the Principal Auditor. The Government has also accused the GSD of overlooking its own record on procurement.
A statement from the Government follows below:
The Government has noted the GSD's press release on the amendments to the Procurement (Concession Contracts) Regulations. Its question, "who is getting a contract without tender?", has a simple answer: the only Government to have granted a big contract without tender was Mr Azopardi's GSD. The GSD granted the tender for the airport road and approach lighting works in breach of Gibraltar and EU laws in 2010. The GSLP terminated that contract in 2012. A press release issued at the time is attached as a reminder to Mr Azopardi of the GSD’s law-breaking approach to Procurement.
Now, under the GSLP Liberal government, nobody is "getting" anything. The amendments are not designed around any contract or any person, and the GSD know it.
In fact, the amendments bring Gibraltar's concession rules into line with UK law. Under the UK's Procurement Act 2023, a contracting authority may switch to a direct award where a competitive tender has already been run and has failed to produce a suitable tenderer. Our rules now do the same as the UK’s rules.
The new provisions apply only in defined circumstances, and principally where an open procurement process has already taken place and has not produced a successful tenderer. In those cases the alternative is not a fresh, better competition which will, once again, not produce a valid or better bid. The alternative is a lost service to the public or lost revenue for the public purse.
Neither is this legal framework new. Direct awards in limited circumstances have been part of UK, EU and Gibraltar procurement law since 2016. The grounds we have now adopted track the World Trade Organisation Government Procurement Agreement, on which the UK's own regime is built. Our legislation is modelled on the UK law adopting the WTO agreement.
The safeguards remain in full:
• Every concession granter must treat operators equally, without discrimination and transparently. No procedure may be designed to favour any operator.
• The duty to prevent, identify and remedy conflicts of interest is untouched. This will soon be further bolstered by the new Conflicts of Interests Act drafted by Mr Daniel Greenberg, the UK Commissioner for Standards, which the GSD do not want to back.
• Every direct award must be supported by a written report setting out the grounds and the facts relied on. The Reports will be laid in Parliament.
• A concession award notice must be published within 48 days of any award.
• Nothing limits the Principal Auditor's access to these decisions or the documents behind them.
• Any operator who believes it has been treated unfairly can go to the Supreme Court, which can declare a contract ineffective.
These are mechanisms which guarantee full transparency and accountability to the public and to Parliament on any grant of any such contract.
It should also be remembered that, despite what the GSD is saying, in a concession, the taxpayer does not pay the operator. The operator takes the risk and pays the Government for the right to operate.
The Chief Minister, the Hon Fabian Picardo KC MP, said: "The GSD are seeing bad faith where there is none. Perhaps that is because, when they were last in Government, they acted contrary to the law themselves. The only big contract granted in breach of procurement rules was granted by the GSD in 2010/11, for the airport simple approach lighting and the associated road works. That is the record Mr Azopardi's party should be explaining before it lectures anyone on tendering.
"What we are doing is simple. We are making sure that Gibraltar's law matches UK law. These provisions apply only in defined circumstances, where an open process has already been run and has not been able to produce a successful tenderer. Every safeguard of equal treatment, transparency and judicial review remains in place.
"This Government will publish reports made under this law and lay them in Parliament. We welcome scrutiny from the public, the Press, the Principal Auditor and the Courts. What we will not accept is the insinuation, without a shred of evidence, that a sensible alignment with UK law is a cover for something improper. It is not, and the GSD should have the decency to say so and accept that they are the ones who broke the law in this area, not us. Mr Azopardi's Party has nothing to be proud of in this regard. It will be my pleasure to remind them of that as often as I have to.”
