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Public procurement policy review: February – May 2013

PLC Public Sector reports:

Our second post on key developments in public procurement policy that lawyers advising in this area need to be aware of covers the period from February – May 2013.  It does not consider case law, which is covered in our monthly public procurement case digest, for a summary of the latest cases, see Public procurement case digest (April 2013).

Subscribers to Practical Law can keep up to date with latest public procurement developments by signing up to the PLC Public Sector e-mail update (available weekly) or the PLC Competition e-mail updates (available daily).  All updates are also tweeted on the @PLCProcurement Twitter feed

Procurement reform update

The “trialogue” between the European Council, Parliament and Commission is underway and the hope remains that agreement will have been reached by the time of the scheduled first reading of the three procurement directives in the European Parliament, which is due to take place on 10 September 2013.  For all the latest developments see our reform trackers, Practice note, Reform of the EU public procurement regime: Negotiation of the reforms.

New procurement anti tax avoidance policy comes into force

On 1 April 2013, the government’s new policy of using procurement to promote tax compliance came into force.  The Cabinet Office has now published a Procurement Policy Note that sets out the questions that all central government departments should include in their procurement documents at selection stage in order to implement the new policy.  For more details on the policy and its implications, see Opinion, “Tax avoiders” to lose out on government contracts.

Guidance on assessing supplier financial standing and mitigating financial risk

The Cabinet Office has published a Procurement Policy Note which provides guidance for contracting authorities on issues relating to the assessment of a potential supplier’s financial standing and the financial risk connected with a supplier. In particular, it provides advice on the financial information required by contracting authorities, the use of credit rating reports, setting contract limits by reference to turnover, and setting the cover limits for business insurance. The Policy Note also provides guidance on mitigating financial risk through securing guarantees or bonds, as well as highlighting other non-financial means of mitigating supplier risks.

Judicial review limitation period to be brought into line with remedies directive

On 23 April 2013, the government announced details of the changes to the judicial review procedure it will be making following a consultation launched on 13 December 2012. The changes, aimed at reducing meritless applications and speeding up the court system, include reducing the time limit for applying for a judicial review of procurement decisions (from three months to thirty days).  For more information on the relationship between judicial review and the public procurement regime, see Practice note, Judicial review and public procurement.

Where two worlds collide: FOI and public procurement

The relationship between the public procurement and freedom of information (FOI) regimes has never been a particularly happy one – particularly for those standing on the supplier side of the fence.  To help try to define what should and should not be disclosed in relation to public procurement, the Information Commissioner’s Office (ICO) has published guidance on the impact that the statutory prohibition on disclosure in regulation 43 of the Public Contracts Regulations 2006 (SI 2006/5) has on the disclosure of information under the FOI regime.

We will shortly be publishing a suite of materials on public procurement and FOI, in the meantime, our Ask the team: What information can I request under the Freedom of Information Act on the reasons for the decision in a public procurement bidding process? may be of interest.

NHS procurement regulations (again)

Our previous public procurement policy review noted the publication of new regulations governing procurement in the NHS.  They proved too controversial, and on 11 March 2013 were replaced by the National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013, which were aimed at allaying fears that the intention of the regulations had been to force open NHS services to competition.  Was the concern merited? Have the new regulations really changed the position? For a view on the answers to these questions and more, see Opinion, Back by popular demand: the new NHS procurement regulations.

Commission promotes e-procurement best practice

For anyone looking for a good book to read on the beach this summer, the European Commission has published a “Golden Book” of best implementation practices in e-procurement. The Golden Book covers 24 best practices and is aimed at promoting convergence towards and take-up of those good practices by member states and public authorities investing in e-procurement infrastructure.

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