The Cabinet Office has indicated that it intends to follow a 'copy out' approach to implementing the new Public Procurement Directive (Directive 2014/24) in the UK with the aim of implementing the Directive by early 2015. The UK legislation will therefore reflect much more closely the European wording than it has done previously. Notwithstanding this approach, which the Cabinet Office has adopted partly in the interests of implementing the Directive as quickly as possible, there are a number of decisions that the Cabinet Office will have to make in transposing the Directive.
Our team at Bird & Bird has identified the choices that the Cabinet Office will have to make and sought to identify the Cabinet Office's likely approach using the public policy notes issued to date, discussion papers that were issued to the public sector towards the end of last year, and in some cases some educated best guesses. Our views on the likely UK approach to implementation of these decisions are set out in the table below and reflect the position as at 31 July 2014.
Whilst the Cabinet Office has played down the number of decisions that are to be taken, in fact some of them will have an important impact on the shape of the new regime. For example:
- 'appropriate national rules' must be developed and implemented for the procurement of 'light touch' services (which are largely those that are currently Part B services);
- the new Directive provides that authorities may exclude bidders for poor past performance – the Cabinet Office must decide the maximum time limit for taking that past performance into account;
- there are important decisions to be made as to how sub-contracting of public contracts will be dealt with going forward; and
- the Cabinet Office must develop and implement new rules relating to avoiding conflicts of interest.
We are expecting that a formal consultation on the Directive should be issued either just before or just after the summer break. That will be an opportunity for those who are affected by the changes to shape the thinking that the Cabinet Office has already undertaken.
Click here to view table.