On March 1, 2017, The Guardian reported that the UK’s Department for International Trade had tendered contracts where they expected that tech companies should have the right ‘cultural fit’ if they wanted to be hired. This was interpreted in the news report as a clear mechanism whereby “Firms bidding for government contracts [were] asked if they back Brexit“. It is indeed a worrying requirement due to the clear risk of unfettered discretion and ensuing discrimination that such ‘cultural fit’ requirement creates. In my opinion, the requirement runs contrary to both EU and UK public procurement rules (and this was later echoed by the follow-up coverage story by The Guardian as well: “Trade department may have broken EU rules with ‘pro-Brexit’ contract criteria”).
In this post, I develop the reasons for the assessment that such a ‘Buy Brexit’ requirement is illegal (which I previously published in my personal blog and the specialised EU Law Analysis blog). I will try to keep this post as jargon free as possible and limit the technical details of my legal assessment as much as possible. However, this is a rather technical area of economic law, so some technicalities will be unavoidable. Continue reading