New public procurement rules for utilities and concessions contracts will soon be in force after the Cabinet Office recently launched a public consultation on the transposition of two EU Directives into UK law. The consultation will remain open until 18 September 2015, with the new Regulations set to come into force by April 2016. View the draft Utilities Contract Regulations and accompanying consultation document. View the draft Concessions Contract Regulations and accompanying consultation document.
New EU Directives, governing public procurement by public bodies, utilities and the award of concession contracts were published on 28 March 2014. In February 2015, the Public Contract Regulations 2015 came into force in the UK, to implement the EU Public Sector Procurement Directive.
The UK Government has stated that, as with the Public Contracts Regulations, the texts of the new Regulations will effectively be “copied and pasted” from the texts of the Utilities Directive and Concessions Contracts Directives, with no changes of substance. Moreover, the main policy choices in respect of transposition of all three Directives have already been made, having been consulted upon as part of the consultation process for the Public Contracts Regulations. This leaves little room for influencing the transposition of the Utilities and Concessions Directives, so this consultation is largely limited to asking for general comments and comments on how the Government has valued the benefits of the new Utilities Regulations as a whole.
The new Utilities Directive aims to codify relevant EU case law since the previous Utilities Directive came into force in 2004, as well as including a number of provisions from the public sector rules. In addition to the procedures already available under the old Utilities Directive, the new Utilities Directive introduces several significant changes, including giving utilities the ability to use the competitive dialogue procedure, introducing a new innovation partnership procedure for utilities, and clarifying the procedure for determining whether activities are directly exposed to competition.
The Concessions Contracts Directive covers both services and works concessions and closes a current gap in the public procurement rules to cover such contracts, seeking to make the approach to awarding concessions contracts more consistent at national level. Contracting entities will be required to publish concession notices for contracts with a value over €5,186,000 and the Directive sets out requirements for all aspects of the award process. These include a limit on the duration of concessions, provisions governing concession and award notices, minimum time limits for the receipt of tenders, and obligations regarding award criteria.
As the new UK Regulations are a “cut and paste” from the Directives (previous Regulations were not, being more in line with UK legislative style), they will seem very different to the current Regulations. Practitioners will need to familiarise themselves with the new format and drafting. They introduce a large number of what appear to be drafting changes, such as a new definition of the term “Works Contract”, though the practical impact of these changes on UK procurement practice is difficult to forecast.