Practical Law

Our first post of this year on the key developments in public procurement legislation and policy that lawyers need to be aware of covers the period from December 2014 to February 2015. It does not consider case law as this is covered in our monthly public procurement case digest. For a summary of the latest cases, see Public procurement case digest (January 2015).

Subscribers to Practical Law can keep up to date with the latest public procurement developments by signing up to the Practical Law Public Sector email update (available weekly) or the Practical Law Competition updates (available daily). Updates are also tweeted on the @PracLawProcure Twitter feed.

Public Contracts Regulations 2015 come into force

On 26 February 2015, the Public Contracts Regulations 2015 (SI 2015/102) (PCR 2015) came into force (see Legal updates, Public Contracts Regulations 2015 published and Government response to consultation on transposition of new EU procurement directives).

The PCR 2015 replace the Public Contracts Regulations 2006 (SI 2006/5) though those regulations continue to apply to procurements commenced before 26 February 2015.

Following the coming into force of the PCR 2015, the government has published a number of guidance documents on:

• The new transparency requirements for publishing contract notices on Contracts Finder.
• Paying undisputed invoices in 30 days down the supply chain, including standard clauses.
• Requirements relating to the use of pre-qualification questionnaires (PQQs).
• Guidance on the completion of OJEU forms and notices pending the introduction of new forms.

(See Legal updates, Crown Commercial Service guidance on new transparency requirements for publishing on Contracts Finder, Crown Commercial Service guidance on Public Contracts Regulations 2015.)

The government has also published Procurement Policy Note 03/15 on reforms to make public procurement more accessible to SMEs (see Legal update, Crown Commercial Service Procurement Policy Note on reforms to make public procurement more accessible to SMEs).

Practical Law has published new and updated content on the PCR 2015, including:

• Practice note, Public procurement in the UK.
• Practice note, Light touch public procurement regime (PCR 2015).
• Practice note, Below threshold public procurement (Part 4, PCR 2015).
• Standard document, Invitation to tender (PCR 2015).
• Standard document, Invitation to tender (PCR 2015): questions for tenderers.
• Practice note, Selection criteria and pre-qualification questionnaires (PQQs).
• Practice note, Evaluation of tenders .
• Practice note, Public to public collaboration and the procurement rules.
• Practice note, Varying public contracts
• Practice note, OJEU notices.
• Checklist, Public procurement procedures: minimum time limits.

Scottish government consults on implementation of procurement directive in Scotland

The PCR 2015 apply to authorities in England, Wales and Northern Ireland. The Scottish government will implement Directive 2014/24/EU in Scotland and on 9 February 2015, launched a consultation on changes to its public procurement rules. The consultation seeks views on those aspects of the new Directives (2014/24/EU, 2014/23/EU and 2014/25/EU) where the Scottish Government has a choice about whether to, or how best to, implement changes.

In addition, the consultation paper discusses elements of the Procurement Reform (Scotland) Act 2014 that have yet to be implemented or further described in Scottish regulations or guidance. In particular, it seeks views on whether some of the new requirements of the EU Directives should be applied to lower value contracts regulated by the Act.

Responses to the consultation are invited by 30 April 2015. The Scottish Government intends to use the responses to this consultation to inform the drafting of new Scottish procurement regulations. It intends to implement the new regulations by the end of 2015.

Draft public procurement regulations under Small Business, Enterprise and Employment Bill 2014-15 published

On 12 January 2015, the Cabinet Office published a policy statement, illustrative regulations and responses to a consultation on reforms to public procurement contained in the Small Business, Enterprise and Employment Bill 2014-15.

The Bill includes a clause that will give the government power to make regulations to implement further measures relating to public procurement in the future. The policy statement and illustrative regulations are intended to assist the House of Lords Grand Committee in scrutinising the Bill.

The illustrative regulations, to be made under the Bill, relate to pre-procurement market engagement and a requirement on contracting authorities to consider applying Lean sourcing principles. The policy statement also sets out the government’s position in relation to other issues that could potentially be included in regulations, such as e-invoicing, making available procurement information, consideration of SMEs, minimum/maximum timescales, debriefing, and use of standard terms and conditions. The Cabinet Office intends to give further consideration and consult further as appropriate before making regulations on these issues.

Review of Public Services (Social Value) Act 2012

On 13 February 2015, the Cabinet Office published a report by Lord Young reviewing the first two years of operation of the Public Services (Social Value) Act 2012.

The report:

• Recommends that the government amend the Act to ensure that it continues to apply to contracts at the current thresholds for services contracts, so that contracts for Schedule 3 services (to which a new threshold of £625,050 will apply) will be caught following the coming into force of the PCR 2015 on 26 February 2015. The Cabinet Office has since confirmed that it intends to prevent the Act’s thresholds from increasing. The report also rejects extending the Act to cover contracts for goods or works.
• States that the Act has had a positive effect where it has been taken up, encouraging commissioners to think about securing value through procurement in innovative ways, generating cost savings and delivering better services in a more responsive way.
• Recommends that the Cabinet Office promotes better understanding of how to apply the Act, following concerns that there have been some inconsistent practices, both in defining social value and determining how and when to include it in the procurement process.

Other items of interest:

• Practical Law published Practice note, Utilities procurement in the UK, an introduction, by Warsha Kalé, Associate Director at Berwin Leighton Paisner LLP.
• On 19 January 2015, the Crown Commercial services published a further procurement policy note (PPN 01/15) on implementing Article 6 of the Energy Efficiency Directive (2012/27/EU).
• On 7 January 2015, the Crown Commercial Service published an updated list of framework agreements available for use by government and other public sector organisations to buy common goods and services.
• On 18 December 2015, the Single Source Contract Regulations (SI 2014/3337) were  published and came into force relating to the award of single source defence contracts.
• On 25 November 2014, the Efficiency and Reform Group published information on the Major Projects Authority (MPA) priorities.

Procurement opinion blogs

We have published the following opinion blogs on the PCR 2015 and on other procurement topics:

• Restoring viability to city centre regeneration? Enter Pressetext, by Christopher Brennan, Consultant at Wragge Lawrence Graham & Co.
• Top 10 tips for new procurement regulations, by John Bennett, co-author of looseleaf encyclopedia, EU Public Procurement Law and Practice.
• Random Effects of scoring price in a tender evaluation, by Michael Bowsher QC of Monckton Chambers.
• Revising local authority standing orders to reflect the Public Contracts Regulations 2015 by Practical Law Public Sector.
• Competitive negotiation under the new draft regulations- a final nail in the coffin? by John Bennett, co-author of looseleaf encyclopedia, EU Public Procurement Law and Practice.