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Public procurement legislation and policy review: June- August 2014

Our third post of 2014 on the key developments in public procurement legislation policy that lawyers need to be aware of covers the period from June to August 2014. It does not consider case law as this is covered in our monthly public procurement case digest. For a summary of the latest cases, see Public procurement case digest (July 2014).

Subscribers to Practical Law can keep up to date with the latest public procurement developments by signing up to the Practical Law Public Sector email update (available weekly) or the Practical Law Competition updates (available daily). Updates are also tweeted on the @PracLawProcure Twitter feed.

In the absence of draft regulations implementing the new procurement directive, the last two months have been fairly quiet on the procurement front.

Small Business, Enterprise and Regulatory Reform Bill 2014-15 and the Mystery Shopper service progress report

On 25 June 2014, the Small Business, Enterprise and Regulatory Reform Bill 2014-15 was published. The Bill includes powers for the Minister for the Cabinet Office or Secretary of State to:

  • Impose duties on contracting authorities in relation to the exercise of their procurement functions, including in relation to the timeliness and efficiency of the process, the availability of documents, the acceptance of electronic invoices, and the publication of reports.
  • Investigate the exercise of a contracting authority’s procurement functions.

The measures are intended to give a statutory basis to the Mystery Shopper scheme, and to implement the government’s decisions on making public procurement more accessible to SME’s.

The Mystery Shopper service was launched in 2011 and aims to give suppliers a clear and direct route to raise concerns about procurement practices when attempts at resolving these issues with the contracting authority have failed. In February 2014, the service was expanded to include spot checks of documents enabling the service to provide feedback to the relevant department.

On 30 June 2014, the Cabinet Office published a progress report on the Mystery Shopper service which highlighted the principle grounds of the complaints it had received, for example relating to onerous PQQs, poor pre-procurement planning, and barriers to SMEs created by the design of framework agreements.

Procurement Reform (Scotland) Act 2014

In June 2014, the Procurement Reform (Scotland) Act 2014 received Royal Assent. The Act applies, in most aspects, to contracts which fall below the thresholds contained in the Public Sector Directive 2004/18/EC, implemented in Scotland through the Public Contracts (Scotland) Regulations 2012, but above the following thresholds:

  • £2 million for public works contracts.
  • £50,000 for other public contracts.

These regulated procurements must be advertised on the Public Contracts website. The Act also:

  • Requires the contracting authority to give reasons for excluding a bidder or rejecting a tender.
  • Requires contracting authorities to publish an annual procurement strategy.
  • Introduces a regime for challenging these regulated procurements which empowers the court to set aside the procurement, order the contracting authority to amend any document or award damages.

The substantive provisions of the Act have yet to come into force.

Revised standard PQQ published

On 16 July 2014, the Crown Commercial Service published a revised standard PQQ. The revised PQQ reflects the government’s policy to assess a bidder’s past performance when evaluating their technical expertise, and includes additional questions on tax compliance.

The revised PQQ is available on Practical Law.

Energy Efficiency Directive implementation

On 3 June 2014, the Cabinet Office published Procurement Policy Note 07/14 implementing the Energy Efficiency Directive. Central government departments, agencies and NDPBs are required to comply with the energy efficiency standards set out in the Directive when purchasing products or services, and purchasing or renting buildings, where the contract exceeds the thresholds referred to in regulation 8 of the Public Contracts Regulations 2006, and to the extent that compliance represents value for money.

New procurement content on Practical Law

We have recently published the following materials which may be of interest to procurement advisers:

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