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 June to August 2017. 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 (July 2017). A new case digest covering cases from August and September 2017 will be published at the start of October 2017.

Subscribers to Practical Law can keep up to date with the latest public procurement developments by signing up to the Practical Law Public Law or Practical Law Local Government email updates (available weekly) or the Practical Law Competition updates (available daily).

Government publications and guidance

• On 24 August 2017, the Infrastructure and Projects Authority and the Cabinet Office issued guidance on essential resources available for project delivery professionals in government who are seeking guidance on managing projects or programmes.
• On 17 August 2017, the Local Government Association (LGA) Brexit Group issued a statement calling for simplification of the EU procurement rules post Brexit. The LGA believes that the government needs to introduce a more efficient UK system regulating how councils buy goods and services after Brexit.
• On 8 August 2017, the Cabinet Office and the Government Digital Service published updated guidance on open standards for use in government technology.
• On 17 July 2017, the Technology and Construction Court (TCC) launched the TCC Guidance Note on Procedures for Public Procurement Cases. This protocol, which takes effect immediately, provides guidance on the management of public procurement claims and the singular procedural issues and difficulties which arise in the course of such proceedings.
• On 13 June 2017, the LGA published guidance for local authorities on the use of dynamic purchasing systems in the public sector.

Crown Commercial Service publications

• On 22 August 2017, the Crown Commercial Service (CCS) launched a new Estates Professional Services framework. The framework is intended to operate for the benefit of public sector bodies such as local councils, NHS trusts, schools, the emergency services and housing associations.
• On 21 August 2017, the CCS published guidance on its free aggregation services for public and third sector organisations. Aggregation for these purposes means combining buyer’s requirements with those of other government, public and third sector organisations to achieve greater savings when buying everyday goods and services such as vehicles, laptops and WiFi services.
• On 1 August 2017, the CCS published its August 2017 update, which covers a wide range of developments, resources and commissioning opportunities.
• On 3 July 2017, the CCS published its customer update for July 2017.
• On 9 June 2017, the CCS published its customer update for June 2017.

Blogs

We have published the following blogs which are of relevance to procurement practitioners:

• Our Public procurement case digest (July 2017).
• Our Public procurement case digest (June 2017).
• Our Public procurement case digest (May 2017).
• Public Procurement in a Post Brexit World – Should the Rules Change to Support UK Jobs?
• Are procurement and construction processes fit for purpose?

Selected Ask queries

• Are there restrictions on extending time limits for tender submissions under Regulation 47 of Public Contracts Regulation 2015?
• Can a local authority’s wholly owned subsidiary bid for a contract with another of the local authority’s wholly owned subsidiaries?
• Should a local authority tell bidders that a service that is being re-tendered is reduced in scope to its existing service?
• Are contracts for management services of collective pension funds excluded from the PCR 2015?
• What is the sanction for failure to use PAS 91 for an above threshold works contract? Could an authority use the standard SQ for a below threshold works contract and would it need to report any deviations?
• Does a VEAT notice need to be published where a local authority identifies that it is permitted to use the negotiated procedure without prior publication under Regulation 32? Are there other requirements to be adhered to when using this procedure?
• Can a local authority novate a framework agreement to its wholly owned subsidiary, and what are the risks?
• If an authority terminates a contract mid-term, can it go direct to the second placed supplier from the original procurement exercise for the remainder of the term?
• When procuring an operator to install broadband/fibre services will the PCR 2015 apply? Is it a concession contract? Are there any state aid issues ? Can we simply appoint a provider without a procurement?
• What are the risks for a contracting authority in deciding to bring in-house a service which is currently procured?
• Can NHS trusts avoid going out to tender for education services?
• Do the procurement rules apply to selection of a sub-contractor by a public authority?
• If an authority is acting for the public in the capacity of an agent (under section 57 of the Housing Grants, Construction and Regeneration Act 1996) will the authority be considered a ‘contracting authority’ for the purposes of the PCR 2015?
• Could the delegation of a non-statutory function by one local authority to another together with payment to enable the carrying out of the services amount to an unlawful delegation or a public contract under the PCR 2015?
• Using the competitive procedure with negotiation – is it possible to negotiate on everything provided it does not change the minimum requirements/award criteria?
• Does an authority need to include all the successful bidders’ scores (as well as names) in a standstill letter to another successful bidder for a multi-framework agreement award?
• What is the extent of the ability in PPN: Standard Selection Questionnaire Action Note 8/16 to ask further project-specific questions relating to the potential suppliers technical and professional ability?
• Are there restrictions on extending time limits for tender submissions under Regulation 47 of Public Contracts Regulations 2015?