The Public Contracts Regulations 2015 (the “new Regulations”) will come into force tomorrow, 26 February 2015. This marks the first step in the implementation of the reform of the EU procurement framework, with two further directives to be implemented before 17 April 2016. The new Regulations, which implement Directive 2014/24/EU, will replace The Public Contracts Regulations 2006 and will bring into effect a variety of changes for both contracting authorities and suppliers in England, Wales and Northern Ireland.
In Scotland, the Scottish Government will make its own, separate implementing regulations, procurement being a devolved matter. The Scottish Government issued its consultation on 9 February 2015, with a view to new Scottish Regulations coming into force at the end of 2015.
We are holding a series of breakfast briefings to discuss the application and impact of the new Regulations on public sector procurement in the UK. Details of these are set out below.
UK Government response to consultation
The coming into force of the new Regulations follows the recent publication of the UK Government’s response to the consultation on transposition of Directive 2014/24/EU. The UK Government’s response stated that the consultation confirmed the Government’s proposed positions on the policy choices allowed by the Directive and that the draft implementing regulations effectively implement the Directive. So, beyond some minor amendments, there are no significant changes to the draft regulations issued last year (which we reported on here).
The Government stated that while it will not amend the draft regulations to accommodate various issues highlighted in the consultation responses, it will publish a range of additional guidance on those issues, including the new “light touch” regime for social and health-related contracts, division of contracts into lots to encourage SME participation, e-procurement, termination of contracts, grounds for exclusion and sheltered workshops.
Commencement and transitional arrangements
In the majority of cases, the new Regulations will replace The Public Contracts Regulations 2006 from 26 February 2015. There is a temporary exemption for certain NHS healthcare services procurements until 18 April 2016. The requirements in relation to e-procurement – electronic communications and the European Single Procurement Document (ESPD) – are also delayed and will not come into effect until 18 October 2018.
As regards recently commenced and ongoing procurements, the new Regulations will not apply to any contract award procedure commenced before 26 February 2015. A contract award procedure will be deemed “commenced” where a contract notice has been sent to the OJEU; where a contracting authority has published any form of advertisement seeking offers or expressions of interest; or where it has contacted any economic operator in order to seek expressions of interest or responded to an unsolicited expression of interest.
With the new Regulations coming into force this month, the UK will have transposed the new Directive with more than a year remaining before the deadline. This is a result of the UK following a “copy-out” approach, where the text of the Directive is copied directly into national implementing legislation. This will allow contractors and buyers to take advantage of the new flexibilities as soon as possible and provide greater certainty as to how the new procurement landscape will look.
It now remains for the UK Government to implement Directive 2013/25/EU on utilities contracts and Directive 2013/23/EU on the award of concession contracts before the 17 April 2016 deadline. Draft Regulations and accompanying consultations are expected to be issued by the Cabinet Office in the coming months.
We are holding a series of breakfast briefings in our London, Edinburgh and Glasgow offices covering the procurement law reforms. In our London briefing on 25 March, we shall provide an overview of the new Regulations, explain what changes contracting authorities in England, Wales and Northern Ireland will need to make to their procurement processes and identify the key issues bidders need to be aware of when competing for public sector contracts under the new regime.
In our Scottish briefings in Edinburgh and Glasgow, we shall discuss the current Scottish Government consultation on the implementation of the EU Directives, as well as the new procurement landscape introduced by The Procurement Reform (Scotland) Act 2014. If you would like to attend one of these briefings, please click on the link below.
London 25 March 2015 - 9.00am - 10.30am
Edinburgh 21 April 2015 - 9.00am - 10.30am
Glasgow 22 April 2015 - 9.00am - 10.30am