Experts says Department for International Trade’s ‘cultural fit’ criteria are too subjective to comply with procurement rules

This article is more than 3 years old

This article is more than 3 years old

Liam Fox’s Department for International Trade may have broken EU procurement rules by specifying in advertisements that contractors must support Brexit.

Albert Sanchez-Graells, senior lecturer in law at Bristol University law school, said the “cultural fit” criteria, included in two advertisements asking tech firms to bid for work with government, were too subjective to comply with EU procurement rules.

“Nobody who does procurement professionally would not have identified this as something that cannot be done,” he said.

In a pair of advertisements, the Department for International Trade specified that in order to have the right “cultural fit” for the task, they must “be committed to the best possible outcome for the United Kingdom following its departure from the European Union”.

Even after Britain has left the European Union, it will still be expected to comply with World Trade Organisation rules on non-discrimination in public procurement.

Such rules ban subjective criteria, which “open the way for unlimited discretion”, as Sanchez-Graells put it — potentially allowing discrimination on political grounds, for example.

“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”, he said.

The requirement to back the best deal for Britain is one of a list of criteria applicants for the two DIT contracts are asked to fulfil, alongside being “focused enough to stick to the task at hand”, “committed and hard-working” and “enthused by the prospect of working at the frontline in such an exciting and dynamic area”.

In total, these “cultural fit” criteria will be given a 15% weighting in assessing which company to pick, the ads say.

Tim Farron, the Liberal Democrat leader, has written to the cabinet secretary, Jeremy Heywood, to urge him to investigate whether rules may have been broken.

In the letter, Farron says: “Public sector procurement is subject to a legal framework, which encourages free and open competition and value for money, in line with internationally and nationally agreed obligations and regulations. I believe that these clear rules have been broken.”

Pro-Brexit ministers have sometimes been frustrated by civil servants’ lack of enthusiasm for the complex task of unpicking Britain’s close relationship with the EU and appear to be determined to hire firms that share their optimism.

Boris Johnson, the foreign secretary and prominent leave campaigner, used a speech to the British Chambers of Commerce on Tuesday to condemn “droning and moaning” about the risks of leaving the EU.

Last December, contractor Deloitte apologised after details of a damning report it had written about Downing Street’s plans for handling the article 50 process were leaked.

The company also agreed to pull out of bidding for government contracts for six months.

Farron said: “The Conservative Brexit government demanding there must be a ‘cultural fit’ is straight out of the pages of Nineteen Eighty-Four.

“The private opinions of government employees have always been their own business. Now they are required to support Brexit, will they have to support the Tories too?”

A DIT source stressed that the “cultural fit criteria” had not been included in job advertisements – only in invitations for companies to tender for work.

A spokesperson said: “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. They will be required to act with objectivity and impartiality under the civil service code.”

A DIT spokesman also insisted the advertisements had not breached any rules: “The criteria is not breaking procurement or recruitment rules; it relates to the purpose of this job. It is entirely normal for government to ask its contractors to deliver work in accordance with government policy.”

The “cultural fit” requirement appears in two government advertisements for short-term digital contracts. One invites bids from firms to “investigate the feasibility of designing a system to manage intelligence on market access barriers”; another is for “investigating the feasibility of creating certain services around trade remedies as trade legislation is transferred from the EU to the UK”.

Academics and former senior civil servants have repeatedly warned about the complexity of the task facing politicians in extricating Britain from the EU, with one thinktank, UK in a Changing Europe, claiming recently that it could overwhelm the capacities of the state; but these sceptics have often been accused of trying to “block Brexit”.