More on Cameron, EU procurement and banning advertising firms

by Peter Smith on February 28, 2010

We featured the proposed Conservative policy on advertising agencies that are involved in ’sexualising children’ last week.  I said then that EU procurement regulations would probably mean that ‘banning’ such firms may well be impossible under procurement regulations.

While many of us may sympathise with the issues the Conservatives are trying to address, and may feel that this is a typical example of ’stupid EU rules’,  I will (unusually) stick up for the principles the EU are following here. The Commission wants to make public sector contracts as open as possible to all firms from across the EU.  They therefore do not allow governments to impose what might be seen as arbitrary or national constraints on who can bid; the EU are concerned that such restrictions are often a way of favouring the home country’s firms.  So the reasons for excluding bidders are very tightly defined, and I don’t believe the UK government could just add “any firms that sexualise children” to the list of exclusions.

On the subject of excluding firms, the GUIDE TO THE COMMUNITY RULES ON PUBLIC PROCUREMENT OF SERVICES (great bedtime reading…) says

“Thus a service provider may be excluded if he: …

… has been guilty of grave professional misconduct proven by any means which the contracting authorities can justify;”

So I take this to mean that the UK would have to show that firms who promote this sort of advertising were guilty of ‘grave professional misconduct’.  I suspect the lawyers would have fun with that.    And, outside the legal issues, simply from a personal point of view, I might (if I had the power) add all sorts of companies to the list of firms that could be excluded from government contracts. For instance:

  • Firms that engage in bribery anywhere in the world
  • Consulting firms that put millions into sponsoring sportsmen who turn out to be immoral, cheating hypocrites
  • IT firms who mislead buyers about the real capability of their products
  • Equipment leasing firms who prey on and rip off uninformed and naive buyers in schools and other public bodies

Ban ‘em all, I say.  But….if I continued through everything that bugs me, and invite you to add to that list, we will quite quickly exclude pretty much everyone who supplies government.

So I will be amazed if this policy flies – worthy though the intent may be.  It will probably be legally impossible; and even if there is away round this, defining exactly when an advertising firm crosses the line and gets ‘banned’ will be so subjective that challenge would be almost inevitable.

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