Here at Mills & Reeve, the procurement team is gearing up for the biggest shake up of procurement law in a decade, the introduction of the Public Contracts Regulations 2015 next year.
This week we've been looking at the "light touch" regime, which is destined to completely replace the current Part B Services regime, for some service contracts that are valued at over 750,000 Euros. As anticipated, the draft Regulations published on 19 September take a very minimalist approach, and the light touch regime is actually featherlight. Although there's a new requirement for either an OJEU notice or PIN, the contracting authority is then free to design whatever procurement process it chooses, provided this doesn’t offend against principles of transparency and equal treatment.
So far so good, now here's the twist. Draft Regulation 76(4) allows a contracting authority to depart from what it stated it would do in the contract notice and decide to run the procurement differently. This is provided that it considers it is still acting transparently, that its actions will not result in unequal treatment, and that it has made a written record of how and why these conclusions have been reached.
The aim here was almost certainly simply to achieve the greatest possible flexibility, but we can see legal fog on the horizon for both the contracting authority and bidders. For the contracting authority, it may be left wondering when and how this flexibility can be used in practice, whether it has properly addressed issues of transparency and equal treatment, and whether its actions and justifications will stand up to scrutiny. For bidders, if the contracting authority hasn't got it right, they'll no doubt be confused about the procurement process which is actually being followed. Combine all of this with the ability of bidders to use Freedom of Information Act requests to establish whether the contracting authority did indeed properly consider (and document) transparency and equal treatment issues before departing from the advertised process, and you have a fertile source of potential procurement dispute and challenge.
Of course the regulations are not yet in final form, so it is a game of 'wait and see' as to whether draft Regulation 76(4) makes the final cut.