REUTERS | Larry Downing

The remedies for failing to comply with the new below threshold regime

“Simple can be harder than complex.”  Steve Jobs

Given the complex public procurement regime, with its various categories of contracts, exclusions and separate pieces of legislation and case law, procurement practitioners were hoping the new regulations would deliver some welcome clarity. Having spent time reviewing the government’s consultation on the draft Public Contracts Regulations 2015 (draft 2015 regulations), it is clear that, in some key areas, public procurement risks becoming even more complicated. 

This post seeks views on one such area, that is, what are the remedies for failing to comply with the government’s new below threshold regime?

Putting to one side the very existence of the new regime in parts 4 and 5 and whether it will achieve its stated goal of opening up public procurement to SMEs, our straightforward question is:

“What remedies are available to a provider who alleges that a contracting authority has not complied with the requirements of part four of the draft 2015 Regulations?”

Unfortunately, as far as we can establish, the answer is not so simple.  The draft regulations provide three key types of procurement:

  • Fully regulated.
  • Light touch.
  • Below threshold.

The position with regard to remedies for breaches of the first two types appears clear; they are covered by the remedies regime though, of course, the rules applicable to those types differ.  That moves us on to the below threshold region, where the position starts to unravel.

It is easy to argue that the remedies regime set out in the draft 2015 Regulations does apply, based on the fact that there is nothing to say it does not, other than a statement that says a contract cannot be set aside for failure to adhere to the part.  The argument is strengthened by the reference to ineffectiveness  – why would you carve this out if the remedies did not apply at all?

However, there are also sensible arguments in favour of the fact that the remedies regime does not apply.  Chief among them is the fact that the draft 2015 Regulations do not say that it does.  Further, elsewhere in the draft regulations, such as in Chapter 5 which covers contract award notices and the standstill period, draft regulation 85 makes it clear that it applies to contracts and framework agreements falling within part 2 only (that is, above threshold procurements, including those let under the light touch regime). Added to this, the carve out for ineffectiveness in draft regulation 109 is made in general terms and makes no reference to draft regulation 98 (or indeed the word “ineffectiveness”).  This calls into question the “if it states ineffectiveness does not apply, the rest of the provisions must” argument. 

If the remedies regime does not apply that poses the additional question as to what remedies are available? The obvious answers  to that question being:

  • None, in which case why bother! or
  • Judicial review, but surely this cannot be the intention given the government’s recent crackdown in this area (even if judicial review seemed to be appropriate, which it does not).

Given the relatively low value and the sheer number of such contracts, the involvement of the courts should surely be avoided.

Draft regulations 106(10) and 107(3) require contracting authorities to have regard to guidance in relation to the form and manner in which information is to be published on Contracts Finder. It is hoped that such guidance will clarify how compliance will be addressed in a way which does not use a sledgehammer to crack a nut!

If anyone is willing to share their thoughts on this issue, we would be very happy to hear them!

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