Today changes are made to the Public Contracts Regulations 2015, and the Concession Contracts Regulations 2016 and Utilities Contracts Regulations 2016 come into force:

Public Sector Procurement

Small amendments have been made to the Public Contracts Regulations 2015 which amend the mandatory exclusion criteria, so your standard PQQs will need to be updated to include these changes. We understand that the CCS is going to publish an amended version of the mandatory standard PQQ shortly.

Also, regulation 72 which deals with modifications to contracts has been slightly revised in relation to the additional works, supplies or services by the original contractor becoming necessary. Now, the requirement is that the change of contractor cannot be made for technical reasons and it would cause significant inconvenience or cost to the contracting authority and any increase to the contract price must not exceed 50% of the original contract value.

Health Procurement

From today (18 April 2016), the Public Contracts Regulations 2015 apply to the commissioning of health service contracts by NHS England and Clinical Commissioning Groups, where the expected value of the contract in question is £589,148 or more. These Regulations will apply alongside the NHS (Procurement, Patient Choice and Competition) (No.2) Regulations 2013. In practice, this means that health service contracts valued over the relevant threshold must be advertised in the Official Journal of the European Union and then a process adhering to the principles of transparency and equal treatment must be carried out in awarding the contract.

Utilities Procurement

From today, utilities must comply with the new requirements under the Utilites Contracts Regulation 2016. These replace the Utilities Contracts Regulations 2006. New provisions for utilities to get to grips with include a limit on the duration of frameworks to 8 years (rather than indefinite), competitive dialogue and innovation partnerships become available for use and the new rules on light touch procurement (where the estimated value is over £785,530) come into play.

Concessions

For the public sector and utilities alike, any contracts for works or services concessions must be procured in compliance with the Concession Contracts Regulations 2016 where the expected value of the concession is £4,104,194 or more.

Under the Concession Contracts Regulations 2016, a concession is defined as a contract under which the execution of works or the provision and management of services is entrusted to one or more providers, the consideration for which is the right to exploit those works or services. Usually this will involve the provider receiving payment from third parties and not wholly from the awarding authority - the key to this definition is that must be some transfer of operating risk to the concession operator which involves “real exposure to the vagaries of the market”.