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 March to May 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 (April 2016).
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New procurement legislation
Three new sets of procurement regulations have been made:
- The Concessions Contracts Regulations (SI 2016/273) (CCR 2016) and the Utilities Contracts Regulations (SI 2016/274) (UCR 2016) came into force on 18 April 2016, coming into force immediately, except to the extent set out in the relevant regulations. On 17 March 2016, the Crown Commercial Service (CCS) also published PPN Information Note 02/16. The CCS is expected to publish further guidance on the new regimes. These two sets of regulations represent the final part of the implementation of the reform of the public procurement regime. These changes have been long-awaited following the government’s quick transposition of the public sector directive that resulted in the Public Contracts Regulations 2015 (SI 2015/102), which came into force in February 2015. For more information on the CCR 2016, see Practice note, Concessions Contracts Regulations 2016: procuring concessions contracts.
- The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (SI 2016/275) also came into force on 18 April 2016, and make various amendments to Acts of Parliament and statutory instruments that are consequential on the coming into force of the Public Contracts Regulations 2015 (SI 2015/102) (PCR 2015), the UCR 2016 and the CCR 2016. One amendment made to the PCR 2015 is of particular interest as it is likely to make the regulation 72 on modifying contracts less accessible.
Transitional period for the light touch regime
18 April 2016 was a busy day for procurement law practitioners as the transitional period for the light touch regime applying to healthcare services contracts also expired and they are now fully subject to the PCR 2015.
Guidance from the government and the Crown Commercial Service
The Prime Minister’s Office and the Crown Commercial Service have issued announcements and guidance:
- On 12 May 2016, the government published the UK Open Government National Action Plan 2016-18 (NAP). The NAP is intended to continue the implementation of the government’s manifesto commitment to maximise openness and transparency in government operations, and contains 13 commitments in relation to transparency, anti-corruption and open government. Of particular interest to procurement practitioners is the commitment to implement the Open Contracting Data Standard in government procurement by October 2016.
- The Prime Minister has announced that the UK will require foreign companies already holding or wishing to buy UK property, or that wish to bid for central government contracts, to reveal who owns them.
- On 30 October 2015, the government published Procurement Policy Note: Procuring steel in major projects, following pressure to assist the UK steel industry. The note took immediate effect and applied to any construction project with a capital value of £10 million or above, with a significant steel component. On 3 April 2016, the government announced that it would extend the existing guidance so that it applied to the whole public sector, beyond central government. As we understand the announcement, this change was intended to take immediate effect.
- On 29 March 2016, the Cabinet Office and Crown Commercial Service published Procurement Policy Note 03/16 (PPN) on the publication of payment performance statistics. The PPN restates the annual publication requirements required under regulation 113(7) of the PCR 2015. It applies to all central government departments (including their executive agencies and non-departmental public bodies) and wider public sector bodies including local authorities and NHS bodies. Exemptions from the requirements include the procurement of some NHS health care services and maintained and academy schools.
On 5 April 2016, the Welsh Government (WG) published a consultation seeking views on plans for the introduction of legislation on public procurement activity undertaken by Welsh public sector organisations. The WG states that it intends to use the new powers (secured in August 2015) to allow Welsh Ministers to introduce legislation on public procurement.
Procurement reform in Scotland
On 17 March 2016, the Scottish Ministers published statutory guidance under the Procurement Reform (Scotland) Act 2014 (Act). The guidance covers procurement strategies and annual procurement reports, the sustainable procurement duty and community benefit requirements in procurement, selection of tenderers and award of contracts, and procurement for health or social care services. Contracting authorities must have regard to this guidance and should consider it in conjunction with the Act and the applicable regulations.
We have published the following blogs likely to be relevant to procurement practitioners:
- Regulation 53 and the definition of “procurement documents” by Katie Bray, Head of Projects at Essex County Council.
- Procurement law after Brexit? by Michael Bowsher QC, barrister at Monckton Chambers.
- Procurement case digests for February 2016, March 2016, and April 2016.
- Does regulation 84 of the Public Contracts Regulations 2015 apply to light touch procurements?
- Are there any exceptions in Regulation 53(1) of the Public Contracts Regulations 2015 for “standard” forms of contract, such as JCT/NEC etc?
- Are there any restrictions on changing the terms of contract prior to the tender stage?
- Can economic operators apply to be admitted to a dynamic purchasing system throughout the period of validity of the system?
- Can a local authority transfer a service to a Trust that it has established without a procurement process under the PCR 2015?
- What do the CCR 2016 and the Concessions Directive provide in relation to the duration of concession contracts?
- Do the Concession Contracts Regulations 2016 contain any provisions dealing with the procurement of below threshold contracts?
- What is the effect of Regulation 118 of the PCR 2015 in relation to contracts awarded before but modified after 26 February 2015?
- In a procurement, should the ITT and the contract documents reflect the core elements of the OJEU?
- Is the estimated contract value under Regulation 58(9) PCR 2015 calculated in accordance with Regulation 6 PCR 2015?
- Are contracting authorities required to notify sole tenderers that there are no other bidders?
- Is a private limited trading company owned by a contracting authority subject to the Public Contracts Regulations 2015 when buying services/goods/works?
- Can a bidder withdraw after it has been awarded a contract?
- Does the standstill period have to restart if more information is provided while it is running?
- How will the thresholds apply to a four year contract?
- How do the time limits apply to PINs used as a call for competition?
- What happens when the limitation period for challenging a material amendment to a framework agreement expires?