After a long wait, the Cabinet Office has published the draft Public Contracts Regulations 2015, the first in the package of legislation, which will implement EU Procurement Directives adopted earlier this year. There now follows a four week long consultation process ending on 17 October 2014.
As expected, the transposition is in many respects "a copy and paste" of the EU public sector directive. The government has decided not to mandate certain options. Instead, its stated intention is to give contracting authorities as much flexibility as possible, to choose the procurement tools and routes it thinks fit, within the scope of the rules, and to prevent "gold plating".
We have set out below some of the key features and areas for consultation in the draft Regulations:
- Transposition – the Cabinet Office has not yet given any indication of the intended date for implementation of the procurement regulations in England and Wales. This is still expected to be early 2015. However, it is not clear whether implementation in Scotland will take place at the same time as implementation elsewhere in the UK. This means that implementation in the UK will be quick and will be ahead of the long-stop date required by the EU Directives themselves.
- Transitional provisions – the draft has followed the previous approach to transition, so that only new procurements advertised after the implementation date will be subject to the new regime. This is subject to two exceptions:
- There is a carve-out from the new light touch regime for health and social services for healthcare commissioning. Healthcare commissioning will fall outside the scope of the new Regulations until April 2016. Until then they will continue to be procured as a Part B service under the existing 2006 Regulations and the NHS Procurement, Patient Choice and Competition Regulations.
- It is not clear whether the Concessions Contracts Regulations 2015 will contain the same transitional provisions – leaving open the possibility that implementation of the concession regulations will be delayed to give contracting authorities more time to adapt to the new regime.
- Remedies – the jigsaw approach to procurement legislation over the last 5-10 years has resulted in numerous amendments being published to the main regulations, making it very difficult to read across amendments or to be sure you are working from the correct version of the rules in force when a given procurement commenced. The new draft provides the opportunity for the Cabinet Office to consolidate all the changes, particularly those made by the Remedies Directive. This will bring real benefits in simplifying the drafts and making them easier to read.
- Guidance – we have highlighted in our seminars on the new procurement directive, some of the difficulties in interpretation, for example in relation to the new language concerning the Most Economically Advantageous Offer. Rather than trying to clarify or expand the drafting in these areas, the Cabinet Office has proposed to issue guidance.
- SMEs – the government is also taking the opportunity to include national measures to improve access to tenders for SMEs. The decision to abolish the use of PQQs for contracts below the thresholds has been relatively well publicised. However what may not be so clear from the small print is the potential sanctions for contracting authorities if they do not stick to the recommended PQQ template issued by the Cabinet Office. In addition, contracts below the thresholds, but where the value is above £10,000 (for central government) or £25,000 (for sub-central government) must be advertised on the government Contracts Finder.
As with the previous consultations, Burges Salmon will be participating in the consultation process. We will be providing seminars on the implications of these changes to UK procurement in Autumn/Winter 2014/15.
A copy of the draft Regulations and consultation document can be found on the gov.uk website.