REUTERS | Dado Ruvic

Public procurement legislation and policy review: March to May 2015

Our second post of this year on the key developments in public procurement legislation and policy that lawyers need to be aware of covers the period from March to May 2015. 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 (April 2015).

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.

Small Business, Enterprise and Employment Act 2015 received Royal Assent

On 26 March 2015 the Small Business, Enterprise and Employment Act 2015 received Royal Assent. The Act confers powers on the Minister for the Cabinet Office or the Secretary of State to make regulations imposing duties on contracting authorities in respect of their procurement and contract management functions. They may also investigate the exercise of these functions. The measures are intended to give a statutory basis to the current “mystery shopper scheme”.

Consultation on remedies in public procurement

On 24 April 2015, the European Commission launched a consultation on the effectiveness of the public procurement remedies regime under Directive 2007/66 (Remedies Directive). The Remedies Directive was implemented into UK law at the end of 2009 through amendments made to the Public Contracts Regulations 2006 (SI 2006/5) and its provisions are also included in the new Public Contracts Regulations 2015 (SI 2015/102).

The consultation seeks views on the effectiveness of the specific provisions such as the standstill period, ineffectiveness and other penalties, as well as on national issues such as review procedures, court and administrative fees, and remedies for below threshold contracts.

The deadline for responding to the consultation is 20 July 2015.

Guidance on the Public Contracts Regulations 2015

Since the  Public Contracts Regulations 2015 (SI 2015/102) (PCR 2015) came into force on 26 February 2015, the government has published a number of guidance documents on the new regulations:

  • Guidance on awarding contracts. The PCR 2015 introduced some new elements regarding the award of contracts, notably (codifying recent case law) the ability to take into account the experience of the people delivering the contract (previously exclusively considered as a selection criterion), provisions permitting an authority to assess cost effectiveness on the basis of life-cycle costing; and a new duty on contracting authorities to investigate abnormally low tenders and to disregard them if they breach international environmental, social or labour law.
  • Dynamic purchasing system guidance. A number of changes have been made to the process for setting up a dynamic purchasing system and the guidance includes some useful FAQs.
  • Guidance on the standstill period. The standstill period remains a feature of the procurement regime. The guidance suggests that contracting authorities should apply a standstill period to the award of contracts where they have used a prior information notice as a call for competition, where they are awarding a Schedule 3 services contract, and for contracts under framework agreements, to reduce the risk of a declaration of ineffectiveness.

Guidance on publishing contract opportunities on Contracts Finder

The PCR 2015 introduced a new requirement for contracting authorities to publish all contract opportunities on Contracts Finder:

  • Where the contract was advertised on OJEU.
  • Where the contract exceeds the threshold of £10,000 (for central government), or £25,000 (for “sub-central” authorities, including local authorities) where that contract has been advertised elsewhere, such as on the authority’s website or local press.

On 25 February 2015, the Crown Commercial Service published guidance on the new rules including the minimum data requirements for publication. Details of contracts awarded must also appear on Contracts Finder, including contracts awarded under framework agreements.

BIS announces bidders for major infrastructure projects must develop skills of workforce

On 24 March 2015, the Department for Business, Innovation and Skills (BIS) announced a new policy whereby bidders for major government infrastructure projects will be required to provide evidence of their commitment to develop the skills of their current and future workforce.

Details of the policy will be further explained in the Procurement Policy Note.

House of Commons briefing paper on PFI costs and benefits

On 13 May 2015, the House of Commons library published a briefing paper on PFI costs and benefits. Key benefits are the transfer of risk from the public to the private sector, and the delivery of an asset that may be difficult to finance or procure conventionally. Key disadvantages were the higher cost of finance, inflexible contracts and that ultimate risk remains with the public sector.



Practical Law Practical Law Public Sector

Leave a Reply

Your email address will not be published. Required fields are marked *