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 September to November 2015. 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 (October 2015).
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Guidance from Crown Commercial Service
In this period, the Crown Commercial Service (CCS) published a couple of new guidance documents on procurement:
- The EU Public Contracts Directive 2014/24. The guidance summarises the main provisions of the Public Contracts Directive, which has been implemented in the UK by the Public Contracts Regulations 2015 (SI 2015/102) (PCR 2015).
- Public Procurement Regulations: electronic procurement and communication. This provides an explanation of the key changes introduced by the PCR 2015 in relation to electronic communications between authorities and suppliers, including the phasing in of the mandatory use of electronic communications, and the use of electronic auctions and electronic catalogues. The guidance then answers a number of frequently asked questions about aspects of the application and interpretation of the new rules.
Standard forms published for procurements under 2014 procurement directives
On 12 November 2015, Commission Implementing Regulation 2015/1986 establishing standard forms for the publication of public procurement notices was published in the Official Journal. This sets out the new and revised standard forms to be used for advertising in the Official Journal public sector contracts (under Directive 2014/24), concession contracts (under Directive 2014/23), utilities contracts (under Directive 2014/25) and defence and security contracts (under Directive 2009/81).
A previous Implementing Regulation, containing the standard forms for use under Directives 2004/17, Directive 2004/18 and Directive 2009/81 is repealed from 18 April 2016, the date when the new Directives must be implemented by member states. However, the new forms should be used by contracting authorities/entities in member states that implement the new Directives prior to 18 April 2016.
New body to be created from Infrastructure UK and Major Projects Authority
On 11 November 2015, the government announced that, with formal effect from 1 January 2016, it will merge Infrastructure UK with the Major Projects Authority to form the Infrastructure and Projects Authority (IPA). For public procurement and construction and engineering specialists, whether in the public or private sector, this proposal may have the advantage in concentrating and distilling experience, creating a single body to deal with.
Guidelines from the European Commission on identifying and avoiding the most frequent errors in public procurement of projects co-financed by the European Structural and Investment Funds
On 29 October 2015, the European Commission published guidance to help public officials identify and avoid the most frequent errors in public procurement of projects co-financed by the European Structural and Investment Funds (see also Commission press release IP/15/5913). The guidance covers EU funded contracts for the procurement of works, supplies and services as set out in Directive 2004/18 on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L134/114). It looks at each stage of the procurement process (preparation and planning; publication; submission of tenders and selection of tenderers; evaluation of tenders; awarding the contract; and contract implementation), highlighting areas where mistakes are typically made and how to avoid them. It includes real-life examples, and explanations of specific topics, case studies and templates.
Procurement reform in Scotland
On 14 September 2015, the Procurement Reform (Scotland) Act 2014 (Commencement No 1) Order 2015 (SI 2015/331) was published. The order brought into force, on 28 September 2015, section 29 of the Procurement Reform (Scotland) Act 2014 (2014 Act) which gives the Scottish Ministers the power to publish guidance about the selection of economic operators and the award of contracts in relation to procurements regulated under the Act. It also brings into force various provisions containing definitions used in section 29.
Regulated procurements for the purposes of the 2014 Act are those with a value below the EU public procurement thresholds but with a value exceeding specified thresholds (£2 million for public works contracts and £50,000 for other public contracts).
Blogs
In this period, we have published the following blogs relevant to procurement practitioners:
- Publishing the procurement documents with the OJEU notice: navigating the Regulations and Guidance by Andrew Millross, Partner at Anthony Collins Solicitors LLP.
- An alternative FAQ for public to public contracts: Can a contracting authority trade through a Teckal company? by John Bennett, co-author of the looseleaf encyclopedia, EU Public Procurement Law and Practice.
- Hold fire! The risks of performing the contract before it is signed by Andrew Little of Hill Dickinson LLP.
We have also published procurement case digests for September, October and November 2015.
New content
We have published Practice note, Procurement reforms and e-procurement, a note that examines the e-procurement reforms in the Public Contracts Directive 2014 and the PCR 2015. The note also sets out the requirements for the electronic procedures to be used by public authorities when undertaking a procurement exercise.
Selected Asks
- Can regulation 32 of the PCR 2015 be used when there would be a significant cost to change IT systems?
- Is a body that is not a contracting authority required to procure in accordance with the Public Contract Regulations 2015 if it is receiving a grant from a contracting authority?
- Does a contract for a local authority to provide HR services to another fall within the regulation 12(7) exemption from the procurement rules?
- Is information forwarded by bidders in a public procurement exercise still confidential if the procurement rules are not followed?
- We only got one bid for a below threshold contract, and that was late. Can we award or do we have to retender?
- Can we vary the terms of a call-off contract before award or as a post contract variation?
- Who should letters be sent to on contract award?