Those planning a procurement challenge would be well advised to launch it on the Friday in November when the annual White Paper procurement conference is held in London. Given so many procurement lawyers are out of the office at once, urgent legal advice on a challenge could be hard to come by!
Mills & Reeve's procurement team attended the conference in force, and the debate on the day confirmed that there is much about the Public Contracts Regulations 2015 which still lacks clarity.
In particular, there was frustration around the way that the new innovative partnerships procedure is described in the draft Regulations and a query as to whether the procedure is really needed.
One area on which there was a consistent view from speakers and the representative from the Commission was around contract amendments.
In general, the 2015 Regulations will only apply to procurements commenced following the date on which the UK Regulations come into force. However, a potential exception relates to amendments to existing contracts. Whilst not expressly stated in the transition provisions, it seems clear that regardless of whether the relevant procurement was conducted under the old or new regime, the procurement law impact of any contract variations will be judged under the Regulations in force as at the date on which the amendments are made.
This means that procurement practitioners need to act now to make sure that contracts entered into before the new Regulations will address the potential for a contract change occurring once the new Regulations are in force. This should ideally include both explaining clearly any circumstances where a change is expressly permitted, and also provisions dealing with the impact of the new Article 73 right of the contracting authority to terminate the contract following any unlawful change.