On 5 February 2015 the Public Contracts Regulations 2015 (SI 2015/102) - New Regulations – were published: these implement the new EU Directive on public procurement adopted in April 2014. The UK Government has moved quickly to finalise the New Regulations, which will apply to tender processes commenced on or after 26 February 2015. The New Regulations seek to simplify the existing regime and provide additional flexibility for contracting authorities, as well as codifying recent European case law.
Key changes brought in by the New Regulations:
- All “procurement documents” must be made available on publication of the OJEU Notice: contracting authorities will have to consider carefully how to interpret this requirement in practice, particularly in more complex procurements where they are unable to specify their requirements in advance.
- Detailed rules governing the modification of contracts during their term, codifying case law in this area, but also providing for more flexibility and ‘safe harbours’ in certain circumstances. These clarifications are particularly welcome.
- More scope for using the negotiated procedure with notice – now renamed the competitive procedure with negotiation; the grounds for using the competitive procedure with negotiation are now identical to the grounds for using the competitive dialogue procedure.
- Review and clarification of the grounds for exclusion: for example, bidders with significant or persistent bad past performance can be excluded (without the need to show fault); bidders may also be excluded where there are indications of their involvement in anti-competitive arrangements.
- Abolition of the “Part A” and “Part B” services distinction: contracts for services currently designated as “Part B” will be fully regulated under the New Regulations, unless they fall within the new ‘light touch’ regime or are separately excluded.
- A new ‘light touch’ regime for contracts for social and other services – including health, educational and cultural services: these will need to be advertised in the OJEU, but are otherwise subject to minimal regulation. However, not all of the current “Part B” services will benefit from this new ‘light-touch’ regime.
- Introduction of measures aimed at making it easier for SMEs and start-ups to participate in procurements: for example, contracting authorities will be able to divide contracts into lots (and will need to give reasons if they choose not to).
- A new procedure – the innovation partnership – for establishing structured partnerships with the private sector to develop innovative products, services or works, not already available on the market.
- Codification of case law in respect of the exemptions for in-house procurement and procurement between contracting authorities.