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 November 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 (August-September 2016). A new case digest covering cases from October and November 2016 will be published at the start of December.
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European Commission decisions
The European Commission has published the following key decisions in the Official Journal:
- On 4 October 2016, the European Commission published an implementing decision on the identification of ICT technical specifications for referencing in public procurement. The Commission’s decision sets out six ICT specifications that are eligible for referencing in public procurement. The decision has been adopted after consultation with, in particular, the European multi-stakeholder platform on ICT standardisation.
- On 17 September 2016, the European Commission published a decision finding that Directive 2014/25 on procurement by utility companies (the new Utilities Directive) shall not apply to contracts awarded by contracting entities and intended to enable the retail supply of electricity and gas to certain customers in Germany.
- On 4 August 2016, the European Commission published a notice extending its deadline for considering a request from Flughagen Wien under Article 35 of the new Utilities Directive. Under Article 35, a member state or contracting authority may apply to the Commission to establish that the new Utilities Directive does not apply to the award of contracts for relevant activities that are directly exposed to competition in markets to which access is not restricted.
- On 22 July 2016, the European Commission published a decision that the new Utilities Directive shall not apply to contracts awarded by contracting entities and intended to enable the following services to be carried out in Poland: clearance, sorting, transport and delivery of courier items; unaddressed mail items; and printing and packaging services.
- On 1 July 2016, the European Commission published a notice extending its deadline for considering a request from the German Federal Association of the Energy and Water Industry under Article 35 of the new Utilities Directive.
Crown Commercial Service guidance
The Crown Commercial Service has issued Policy Notes and guidance:
- On 2 November 2016, the Crown Commercial Service (CCS) published the Public Contracts Regulations 2015: Guidance on social and environmental aspects.
- On 28 October 2016, the CCS published Crown Commercial Service update: 2016 and Crown Commercial Service: agreements.
- On 19 October 2016, the CCS published updated guidance Buying goods and services: options for public sector buyers, which reminds those buyers that they can use the CCS to purchase a variety of goods and services via self service options or procurement support.
- On 14 October 2016, the CCS published a collection of all procurement policy notes (PPNs) including the most recent PPN 09/16 Procuring Growth Balanced Scorecard.
- On 26 September 2016, the CCS published Procurement Policy Note 08/16: Standard Selection Questionnaire. The PPN sets out the revised standard selection questionnaire which replaces the current standard Pre-Qualification Questionnaire (PQQ) and supersedes the guidance on supplier selection and PQQs in PPN 03/15.
- On 16 September 2016, the CCS published an updated version of its statutory guidance for contracting authorities and suppliers on paying undisputed invoices in 30 days down the supply chain.
- On 25 August 2016, the CCS published an updated framework agreement list for the procurement of common goods and services and information on the services it offers to government and public sector buyers that are interested in buying technology goods and services.
- On 24 August 2016, the CCS published its August 2016 Guidance update, which covers a wide range of developments, resources and commissioning opportunities.
- On 8 August 2016, the CCS published updated guidance Amendments to contracts during their term. The guidance relates to the permissible grounds for amendments to contracts under the Public Contracts Regulations 2015.
- On 3 August 2016, the CCS published updated guidance Buying goods and services: options for public sector buyers. The guidance reminds those buying goods and services for the public sector that they can use the Crown Commercial Service to buy a variety of goods and services.
- On 19 July 2016, the CCS published Procurement Policy Note 07/16: Legal requirement to publish on Contracts Finder. The PPN reminds contracting authorities to ensure that procurement opportunities and contract awards above certain low thresholds are published on Contracts Finder.
- On 25 June 2016, the CCS published Procurement Policy Note 06/16: Armed Forces Covenant. The PPN applies to central government, executive agencies and NDPBs. The Armed Forces Covenant is a public sector pledge from government, businesses, charities and organisations to demonstrate their support for the armed forces community. This PPN sets out guidance on how departments can encourage suppliers to sign the Covenant by including the text at Annex A in their invitation to tender documents.
Other government publications
- On 21 October 2016, the Department of Health published new guidance on the Public Contracts Regulations 2015 for commissioners of healthcare services.
- From 5 September 2016, the Cabinet Office began publishing a series of case studies showing how providers apply social value.
- On 30 June 2016, the Foreign & Commonwealth Office, Ministry of Defence and UK Trade & Investment published a guide to navigating NATO procurement.
European Court of Auditors special report
On 15 July 2016, the European Court of Auditors published a special report examining the public procurement rules applicable to EU institutions and the extent to which more could be done to facilitate access to their public procurement.
European Commission guide to Public-Private Partnerships accounting
On 29 September 2016, the European Commission and the European Investment Bank launched the Eurostat Guide to the Statistical Treatment of Public-Private Partnerships, which is intended to provide a clear overview of the potential impact of PPPs on government finances.
The role of state aid rules in supporting investment and protecting competition
On 14 October 2016, the European Commission published a speech by Margrethe Vestager, Competition Commissioner, in which she discussed the use of the state aid rules to support investment and protect competition. The Commissioner explained the importance of ensuring that member states are able to make vital investments in, for example, new energy plants and transport infrastructure. She noted how a large amount of state funding falls outside the state aid rules as it either does not constitute state aid or falls within the General Block Exemption Regulation.
We have published the following blogs likely to be relevant to procurement practitioners:
- Brexit: What next for public procurement? by David Gollancz, barrister at Keating Chambers.
- What’s more difficult than decommissioning nuclear reactors? Ten Lessons from the recent judgment in Energysolutions EU Limited v Nuclear Decommissioning Authority by Jamie Potter, Partner at Bindmans LLP.
- Decision that tender was abnormally low was flawed by Rebecca Haynes, barrister at Monckton Chambers.
- Procurement case digests for May 2016, June 2016, July 2016 and August-September 2016.
- Once a contracting authority has set up a DPS, how often must it review applications made to it by contractors seeking admission? Can it specify on the terms and conditions that it will do this quarterly and respond within 10 days of each quarter?
- Where the owner of land wants to sell the land to the local authority, but only on the basis the owner company can develop the land, would this fall within or outside the EU procurement rules?
- How can a local authority meet its obligations of transparency and equal treatment in relation to TUPE costs when retendering a services contract?
- Are bid clarification meetings permissible under the PCR 2015?
- Can a parent and subsidiary company both tender for the same contract or can they be prevented from doing so by a contracting authority (either under company law or public procurement law)?