The UK Public Contracts Regulations 2015 came into force on 26 February 2015, implementing the EU Public Sector Directive 2014/24. This Directive forms part of a package of three Directives (the other two being the Utilities Directive 2014/25 and the Concessions Contracts Directive 2014/23) which together are the most major overhaul of the EU public procurement regime since 2004.

Changes include:

  • Shorter time limits for responding to tenders and greater flexibility to negotiate, for example a new ‘innovative partnership’ procedure for the award of R&D and similar contracts
  • The replacement of the distinction between Part A (priority) and Part B (non-priority) services by a new ‘light touch’ regime, whereby the latter services (health, social and other) will be caught by the rules only if their value exceeds Euro 750,000,  with greater flexibility in the rules and procedures which will apply
  • Tender documents must be available online from the date of the OJEU contract notice
  • Rules on splitting contracts into lots to facilitate tendering by SMEs
  • Further grounds of exclusion at the selection stage including tax evasion and terrorism, discretion to exclude on grounds of poor past performance, and also time limits after which the exclusion of a bidder for the various grounds of exclusion (3 or 5 years depending what they are) no longer apply
  • Elimination of pre-qualification questionnaires for certain low value contracts and a requirement to advertise below-threshold contracts (above £10,000 and £25,000 for central government and other authorities respectively) on the Contracts Finder portal.

There is also now codification of principles such as contract modifications and when a new tender is required (per Pressetext case law of the ECJ), conflicts of interest (Fabricom), in house procurement by authorities (Teckal exemption), cooperation between authorities and assessment of staff at award stage.

The new Regulations apply to contracts advertised from 26 February 2015, the PCR 2006 applying to procurements before that date.

While the rules seek to give greater flexibility to authorities in certain respects and facilitate greater involvement by SMEs, there will be uncertainty in the application of some of these.  There are also very many technical changes and an understanding of these will be necessary to avoid falling foul of the rules.