Conflict of interest (COI) declarations are one of the most routine documents in a public procurement file, and one of the most consequential. A poorly handled declaration, or a conflict that surfaces only after contract award, can unravel an entire evaluation process, expose a contracting authority to legal challenge, and end an individual evaluator’s involvement in a procurement altogether. This article looks at how COI rules actually operate in practice: the legal basis in the UK and EU, the patterns that most commonly lead to an evaluator being removed or a tender being excluded, and the governance measures that keep procedures defensible.
The legal foundation
In the EU, Directive 2014/24/EU requires Member States to take appropriate measures to prevent, identify and remedy conflicts of interest arising in procurement procedures, so as to avoid any distortion of competition and to ensure equal treatment of all economic operators (Article 24). The Directive also permits contracting authorities to exclude a bidder where a conflict of interest “cannot be effectively remedied by other, less intrusive, measures” (Article 57(4)(e)). The Court of Justice of the European Union has been consistently strict on this point. In its 2015 ruling in eVigilo (Case C-538/13), the Court held that a conflict of interest constitutes, in itself, a breach of the principles of equal treatment and transparency, the complainant does not need to prove that bias actually influenced the outcome; it is for the contracting authority to investigate and address the conflict once identified. A related principle comes from Ismeri Europa (Case T-277/97), a 1999 case concerning EU-funded programme management rather than a procurement tender, where the Court of First Instance (the General Court’s predecessor) held that a conflict of interest is ‘objectively and in itself’ a serious irregularity, regardless of whether the individuals involved acted in good or bad faith, a principle the CJEU would later draw on directly in eVigilo.
In Ireland, these principles are reflected through the implementation of EU procurement directives and the national procurement framework overseen by the Office of Government Procurement (OGP). Irish contracting authorities are similarly expected to identify, manage and document conflicts of interest throughout the procurement lifecycle, ensuring compliance with transparency, equal treatment and competition principles.
In the UK, the Public Contracts Regulations 2015 required contracting authorities to take appropriate steps to identify, prevent and remedy conflicts of interest, with a summary of any conflicts and remedial measures recorded in the procurement report under regulation 84(1)(i). Cabinet Office Procurement Policy Note 04/21 built on this, requiring all individuals involved in an evaluation, including external experts, secondees and consultants, to sign a conflict of interest declaration confirming there is no actual or potential conflict, and specifying that declarations must be refreshed whenever a new interest arises rather than relying on a single annual sign-off.
The Procurement Act 2023, now in force, goes further still. Sections 81–83 impose a formal, ongoing duty on contracting authorities to identify and keep under review actual, potential and perceived conflicts of interest throughout the procurement lifecycle, from planning through to contract management. Authorities must prepare a written conflicts assessment before publishing a tender notice, and critically, exclusion of a supplier becomes mandatory, not discretionary, where a conflict of interest gives that supplier an unfair advantage and the conflict cannot be adequately mitigated, or the supplier refuses to take the necessary mitigating steps.
How evaluators actually get disqualified: the recurring patterns
Drawing on published case law, EU Commission guidance and UK public sector audit findings, a small number of fact patterns account for most real-world disqualifications. None of these require dishonesty, most arise from a failure to disclose promptly, or from treating “no direct financial interest” as the whole test.
Undisclosed prior professional relationship with a bidder
The most common trigger is an evaluator who has previously worked for, been paid by, or acted as a subcontractor or associate of one of the bidding organisations, often years earlier, and often in a role the evaluator considers irrelevant to the current contract. European Commission guidance on avoidance of conflicts of interest identifies this as a “professional conflicting interest,” particularly where an economic operator (or an individual linked to one) is later engaged to evaluate work in an area where they previously had a stake. The test applied by contracting authorities is not whether the past relationship did influence the evaluator, but whether a reasonable, informed observer would consider that it could have, the “perceived conflict” standard now written directly into the Procurement Act 2023.
Prior involvement in drafting the specification or evaluation criteria
Where an evaluator (or an external expert brought onto the panel) had a hand in shaping the tender documents, specification, or scoring methodology, and later evaluates responses against that same specification, this is treated as a distinct exclusion ground under EU law (Article 57(4)(f) of Directive 2014/24/EU) separate from conflict of interest itself, because of the informational advantage it creates. Contracting authorities that fail to communicate this prior involvement to other bidders, or fail to take steps to neutralise the advantage, have had award decisions successfully challenged.
Personal or family connections not captured by a narrow reading of “financial interest.”
Declarations that ask only “do you have a financial interest in any bidder?” routinely miss conflicts arising from close relatives, personal friendships, or shared board memberships in unrelated organisations. UK guidance is explicit that “interest” includes personal and professional interests, not only financial ones, and that this extends to indirect interests.
A conflict that arises or changes mid-procedure
A declaration signed at the outset of an evaluation is a snapshot, not a permanent clearance. Evaluators who accept a new consultancy engagement, change employer, or develop a new business relationship partway through a live evaluation, without updating their declaration, create exactly the situation both PPN 04/21 and the Procurement Act 2023 guidance flag as high-risk, because the original declaration is no longer accurate at the point scores are being finalised.
Authority-side failure to investigate a raised allegation
A pattern less about the evaluator and more about process: where a bidder raises a conflict allegation during a live procurement and the authority does not investigate it with “due diligence,” relying instead on a general assurance of impartiality, the Vakakis and eVigilo judgments both indicate this omission, not the underlying conflict itself, can be sufficient grounds to unpick the award.
Consultancy or framework “double-hatting.”
Where the same firm (or its associated individuals) sits on both sides of a procurement, for instance, advising on the tender design and separately bidding to deliver it, or being contracted to evaluate a competition after previously delivering the incumbent contract, this has led to exclusion decisions being upheld even where the individuals or teams involved were kept formally separate, because separation alone does not remove the perceived advantage unless clearly evidenced and recorded.
What effective declarations actually require
The direction of travel in both UK and EU practice is the same: declarations are treated as a process, not a one-off form. Good practice, reflected in Cabinet Office and European Commission guidance, includes:
- Proportionate but genuine investigation of any conflict allegation raised by a bidder during the process, rather than a summary denial.
- A written conflicts assessment prepared before the tender is published, not reassembled afterwards, now a mandatory step under the Procurement Act 2023 for covered procurements.
- Declarations completed by everyone with real or perceived influence over the outcome, evaluation panel members, external experts, secondees, and anyone providing input to scoring or moderation, not only the panel chair.
- A standing obligation to update the declaration as circumstances change, rather than a single sign-off at kick-off.
- Clear, documented mitigation where a conflict is identified but not disqualifying, ethical walls, removal from specific lots, or exclusion from moderation discussions, with the rationale recorded in the procurement report.
The underlying principle
None of the case law above turns on proof that a biased evaluator actually changed a score. The consistent theme, from Ismeri Europa in 1999 to the Procurement Act 2023 today, is that a conflict of interest is treated as a structural risk to the fairness of the process itself, and that the burden falls on the contracting authority to identify, document and manage it, not on a challenger to prove that harm occurred. For anyone involved in running or advising on evaluation panels, that is the standard a declaration process needs to meet: not “would this evaluator say they were unbiased,” but more “would a reasonably informed observer, seeing what we know now, consider this process to have been safe.”
Lectures de référence et sources complémentaires :
eVigilo, C-538/13 (12 March 2015, ECLI:EU:C:2015:166) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62013CJ0538
Ismeri Europa v Court of Auditors, T-277/97 (15 June 1999) https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61997TJ0277
Vakakis kai Synergates v Commission, T-292/15 – liability judgment, 28 Feb 2018 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62015TJ0292
Directive 2014/24/EU (consolidated text, Articles 24 and 57 included): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02014L0024-20240101
Article 57 specifically: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32014L0024#d1e3396-65-1
Procurement Act 2023, Part 5 (ss. 81–83, Conflicts of Interest): https://www.legislation.gov.uk/ukpga/2023/54/part/5
Public Contracts Regulations 2015, reg. 84: https://www.legislation.gov.uk/uksi/2015/102/regulation/84/made?view=plain
PPN 04/21 – Guide for Commercial and Procurement Professionals (PDF, contains the reg. 84(1)(i) reporting requirement): https://assets.publishing.service.gov.uk/media/6139d837e90e070434bbbfc0/20210909-PPN-04_21-A-Guide-for-Commercial-and-Procurement-Professionals-Updated-version.pdf
PPN 04/21 overview page (GOV.UK): https://www.gov.uk/government/publications/procurement-policy-note-0421-applying-exclusions-in-public-procurement-managing-conflicts-of-interest-and-whistleblowing
Procurement Act 2023 – Cabinet Office Conflicts of Interest guidance (Define Phase): https://www.gov.uk/government/publications/procurement-act-2023-guidance-documents-define-phase/guidance-conflicts-of-interest-html
