Practical Law

This post sets out the key developments in public procurement legislation and policy that lawyers need to be aware of and covers the period from December 2015 to February 2016. The post does not consider case law as this is covered in our monthly public case digest. For a summary of the latest cases, see Public Procurement case digest (January 2016).

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Guidance from Crown Commercial Service

In the period that this post covers, the Crown Commercial Service (CCS) published several new documents on procurement:

• Procurement Policy Note (01/16) explaining how contracting authorities can ensure compliance with wider international obligations when letting public contracts. The note states that public procurement should never be used as a tool to boycott tenders from suppliers based in other countries, except where formal legal sanctions, embargoes and restrictions have been put in place by the UK government.
• A response to the consultations on the transposition of the Concessions Directive and the New Utilities Directive. Taking into account certain comments from respondents, the government considers that the consultations, overall, have confirmed that the draft implementing Regulations implement the Directives effectively, and plans to implement the new Regulations by 18 April 2016 for England, Wales and Northern Ireland.
• An announcement that the CCS has worked with the Competition and Markets Authority to develop an e-learning module to help central government procurers to spot and prevent attempts to win government contracts through anti-competitive conduct, such as bid-rigging.
• Procurement Policy Note (18/15) on the new threshold levels to apply from 1 January 2016 to 31 December 2017 to public contracts, utilities contracts and defence and security contracts.
• New guidance on the new subcontracting provisions in the Public Contracts Regulations 2015. The guidance explains the scope of Regulation 71, which gives contracting authorities additional obligations and flexibilities to allow further transparency and oversight of working practices of the subcontracting chain. It includes answers to frequently asked questions as well as recommended contract clauses.

Guidelines and revised regulations from the European Commission

The European Commission has made a series of announcements:

• On 29 January 2016, the European Commission presented a revised proposal for a new Regulation on giving third-country goods and services access to the EU’s internal market for public procurement and procedures supporting negotiations on access of EU goods and services to the public procurement markets of third countries.
• On 15 January 2016, the European Commission announced that an online machine translation service is now available, free of charge, for all public procurement notices in Tenders Electronic Daily (TED). TED is a website managed by the Publications Office of the European Union which allows companies to find out about public procurement opportunities.
• On 5 January 2016, the European Commission announced that it has, in accordance with Article 59(2) of Directive 2014/24 (the new Public Sector Directive), adopted the new European Single Procurement Document.
• On 16 December 2015, Commission Regulations amending the thresholds for the application of Directive 2009/81 (Defence Procurement Directive), Directive 2004/18 (old Public Sector Directive) and Directive 2014/17 (old Utilities Directive) were published in the Official Journal.

Procurement reform in Scotland

There have been three new pieces of Scottish procurement legislation:

• On 2 February 2016, the Concession Contracts (Scotland) Regulations 2016 were published. These Regulations repeal the Public Contracts (Scotland) Regulations 2012 and implement Directive 2014/23 (the Concessions Directive) for Scotland. The Regulations will come into force on 18 April 2016 and confirm the Scottish Government’s decision to make it mandatory for all communications to do with the procurement of concession contracts to be carried out electronically.
• On 21 December 2015, the Public Contracts (Scotland) Regulations 2015 were published. These Regulations repeal the Public Contracts (Scotland) Regulations 2012 and implement the New Public Sector Directive for Scotland. The Regulations will come into force on 18 April 2016 and implement various decisions made by the Scottish Government following a consultation on changes to the public procurement rules in Scotland.
• On 7 December 2015, the Procurement Reform (Scotland) Act 2014 (Commencement No 2) Order 2015 was published. This brought into force on 11 January 2016 certain provisions of the Procurement Reform (Scotland) Act 2014.

Blogs

We have published the following blogs likely to be relevant to procurement practitioners:

• “Living wage” provisions in public procurement contracts by John Bennett, Co-author of the looseleaf encyclopedia, EU Public Procurement Law and Practice.
• Procurement case digests for December 2015 and January 2016.

Selected Asks:

• What issues should a council be aware of when looking at setting a limit for a cap on liability?
• How does a consortium bring a public procurement challenge?
• When will the new concession regulations be in force for England and Wales?
• What procedures must be followed when preparing an in-house proposal (rather than formal bid) alongside a formal procurement process?
• Is it possible under the procurement regulations to have a framework agreement with mini-competitions but without call-off terms?
• Can we invite the bidders who responded to a PIN to take part in a competitive process or do we need to readvertise the contract?
• Can you still use a VEAT notice in respect of a contract change?
• Is a Special Purpose Vehicle bound by the Public Contract Regulations 2015 when it conducts a procurement exercise for services?
• Is it permissible to shorten the standstill period from 10 to 5 days for a contract awarded under a framework agreement?
• What information must be disclosed to a winning bidder requesting information about the basis for a challenge to an abandoned public procurement process?
• Can we negotiate with a single bidder after contract award to insert a break clause in favour of the authority?