PLC Public Sector reports:
PLC Public Sector looks ahead and highlights five key issues that are likely to occupy the time of procurement lawyers in 2010.
Our top five are:
- Topping the bill will inevitably be the implementation of the new Remedies Directive. While it only applies to the procurements started after 20 December 2009, it will not be long before new procurements work their way through the system and we start to see how the new standstill period, the automatic suspension provisions and, of course, the new ground of ineffectiveness are put into practice. In the meantime, there are still a number of unanswered questions that will occupy the time until they do. For more information on the new regime, see our practice note.
- Three years on from the judgment in Auroux, there is still confusion about the application of the public procurement regime to development agreements. If not paralysis, the confusion has certainly lead to a reluctance on the part of local authorities to proceed with schemes. Hopefully, 2010 may see things begin to move forward again, albeit with the risk of further legal challenge. It may also be the year for procurement lawyers to get to grips with developing a procurement model that complies with the public procurement regime, while remaining practical. For more information on the application of the public procurement regime to development agreements and for advice on how to deal with the problems created by Auroux and its predecessors, see our practice note.
- Following Copenhagen, all things green are on the agenda. With the Government’s drive to use its considerable procurement spend as a tool to deliver policy, the importance of sustainable procurement will grow substantially in 2010. We will shortly be publishing a new practice note on sustainable procurement setting out the background and key drivers behind sustainable procurement and, most importantly, how public authorities can take account of sustainability issues at each stage of a public procurement.
- The Equality Bill may or may not make it though Parliament before it dissolves in advance of the General Election. If it does, it will impose a new single equality duty on public authorities which will mean that equality will have to play a role in all public procurements. As currently drafted, the Bill also includes a right for the Secretary of State to introduce specific equality requirements in relation to public procurement. How these new duties will be worked into procurement practice may be a key issue toward the end of 2010. For more information on the Bill see our legal update.
- Information issues and confidentiality are likely to remain high on the agenda. The Scottish Government has recently taken soundings about extending the FOIA regime in Scotland to cover PFI/PPP contractors, while, south of the border, there is the prospect of an appeal by Veolia against the disclosure of its waste contract with Nottinghamshire County Council ordered by the High Court under the Audit Commission Act 1998. For more information on the Veolia decision, see our legal update.
This top five does not take account of some of the ongoing issues which procurement lawyers will continue to have to address. These include the increase in procurement cases being taken to court (which the issues above will accelerate) and, most commonly, problems with evaluation processes, with issues such as the confusion of selection and award criteria still appearing to be rife.
Clearly, 2010 is going to be a busy year!