Our third 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 June to August 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, Public procurement case digest (July 2015).
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Guidance from Crown Commercial Service
In this period, the Crown Commercial Service (CCS) published several new guidance documents on procurement:
- Guidance on Framework agreements, sets out the changes arising from the Public Contracts Regulations 2015 (SI 2015/102) (PCR 2015), such as the requirement to publish contract award notices for call-off contracts on Contracts Finder. For more information, see Practice note, Framework agreements let under the public procurement regime.
- Guidance on provisions that support market access for small businesses. The guidance sets out and explains the provisions included in the PCR 2015 designed to streamline procurement processes and remove unnecessary barriers to participation by smaller organisations. These include the requirements:
- for contracting authorities to justify a decision not to divide a contract into lots;
- that contracting authorities must not to require bidders to have a turnover of more than twice the annual contract value; and
- for electronic communication.
In addition, the CCS published an updated version of its Commercial capability: Contract management standards, aimed at addressing poor contract management in government and covering areas such as performance management, change management processes and incentives for service improvements.
Since the PCR 2015 came into force, the CCS has published many other guidance documents, see Blog, Public procurement legislation and policy review: March to May 2015.
New Procurement Policy Notes
The Cabinet Office and the CCS have also published a number of new procurement policy notes (PPNs):
- Procurement Policy Note (09/15): assisting with procurement investigations. Section 40 of the Small Business, Enterprise and Employment Act 2015, which came into force on 26 May 2015, provides that the Minister for the Cabinet Office or the Secretary of State may investigate the exercise by a contracting authority of relevant functions relating to procurement. This gives a statutory basis to the “Mystery Shopper Scheme”.
- Procurement Policy Note 11/15: acceptance of unstructured electronic invoices by central government authorities, which applies to invoices submitted by suppliers on or after 30 June 2015. The PPN states that all central government departments including their executive agencies and non-departmental public bodies (NDPBs), should accept “unstructured” electronic invoices (electronic versions of paper invoices) if suppliers choose to submit invoices in that form (although there is no obligation on suppliers to do so).
- Procurement Policy Note 12/15: availability of procurement procedures (Decision Tree), which provides guidance on the choice of public procurement routes available. The note overs the changes to the choice of procurement route resulting from the coming into force of the PCR 2015, and includes a new Decision Tree setting out the choice of procurement routes available and guidance on the choice of procurement procedure.
- Procurement Policy Note 13/15: increasing the transparency of contract information applies to contracts advertised on or after 1 September 2015 by all central government departments, including their executive agencies, and NDPBs. It provides guidance on implementing principles on transparency of suppliers and government and aims to increase the type and accessibility of contract and procurement data to the public, in line with the transparency principles published by the government on 24 March 2015.
Consultation on implementation of public procurement directives in Scotland
On 10 August 2015, the Scottish government published an analysis of the responses it had received to its consultation on the implementation of the new procurement Directives 2014/23/EU, 2014/24/EU and 2014/25/EU in Scotland (see Practice note, Reform of the EU public procurement regime). Two areas of particular interest are the extent to which the procurement rules can be used to deliver social goals, such as the payment of the Living Wage and tackling tax evasion, and the need for a review body that sits below the national courts, such as a procurement tribunal or ombudsman service. The Scottish Government is taking these responses into account in formulating its plans to change the public procurement rules in Scotland.
EU Open Data Portal: new procurement data on TED
In July 2015, the EU Open Data Portal, also known as Tenders Electronic Daily or TED published a subset of data covering procurement for the European Economic Area, Switzerland and the former Yugoslav Republic of Macedonia from 1 January 2009 to 31 March 2015. Generally, the data consists of tenders above the procurement thresholds. However, publishing below threshold tenders in TED is considered good practice, and so some information on below-threshold tenders is present as well.
Exemptions from Utilities Directives
The European Commission has been dealing with various requests for exemptions from the Utilities Directives during the June to August 2015 period:
- On 2 July 2015, the European Commission published a notice in the Official Journal concerning a request by Flughafen Wien under Article 35 of Directive 2014/25/EU (the new Utilities Directive) to exempt the provision of airports and other terminal facilities in Austria. The Commission will consider the request after it has received complete and correct information.
- On 10 July 2015, the European Commission published a decision finding that Directive 2004/17 (the old Utilities Directive) will not apply to contracts awarded by contracting entities and intended to enable the exploration for oil and natural gas to be carried out in Greece.
- On 15 August 2015, the European Commission published a notice in the Official Journal announcing that it received a request from ENI Portugal BV under Article 30 of the old Utilities Directive. This request concerns exploration for oil and gas in Portugal. Until repealed (on 18 April 2016), the old Utilities Directive applies to the award of relevant contracts, unless the activity is exempted pursuant to Article 30 of that Directive. Article 30 provides that the Directive is not applicable to a relevant activity that is directly exposed to competition in markets to which access is not restricted.
The activity of exploration for oil and gas will no longer be covered by the provisions of the new Utilities Directive 2014/25/EU. Therefore, no exemption will be needed. For more information, see Ask, Does the new utilities procurement Directive 2014/25/EU exclude exploration and extraction activities in relation to oil and gas?
In this period, we have following the following blogs relevant to procurement practitioners:
- Edenred – a deceptively narrow decision but with wide reaching consequences by Michael Bowsher QC and Azeem Suterwalla of Monckton Chambers.
- What role do competition law principles play in public procurement? by Simon Taylor of Keating Chambers.
- What exactly are the remedies for breach of the Part 4 public procurement regime? by John Bennett, Co-author of the looseleaf encyclopedia, EU Public Procurement Law and Practice.
We have published Practice note, Abandoning a public procurement process, a note describing the steps that a contracting authority must take to lawfully abandon a public procurement process under the PCR 2015. The note also considers the options available to a contracting authority following the abandonment of a public procurement process and the grounds of challenge that may arise.
We have also published a number of Ask resources covering procurement matters, for example:
- Can a bidder walk away or materially change the terms of a public contract once the authority has identified it as the preferred bidder?
- Can we award a public contract to a company which was established by a sole trader in the period between tender submission and evaluation?
- Do we have to ask all bidders the same clarification question in a public procurement process?
- What procurement regime applies to concession contracts?
- Can a contracting authority require other authorities to pay to use its frameworks? Is the agreement between the two authorities subject to the procurement rules?
- Could “arbitration or conciliation” in regulation 10(d)(i)(aa) of the Public Contracts Regulations 2015 be inferred to also cover adjudication?
- Is a contracting authority that is permitting variant bids required to state which variants would be acceptable?
- Do any of your agreements cover termination under regulation 73 of the PCR 2015?.
- Does the ability to vary a public contract by up to 50% of the value apply cumulatively or to each change?