The new Public Contracts Regulations 2015 (PCR 2015) will come into force on in two days time, on 26 February 2015. Even before the UK Government published the final version of the PCR 15, we have been helping clients prepare for the new rules. In this briefing, we set out our Top 10 Tips for becoming compliant by the Go Live Date.
1. Old or new rules?:
As PCR 15 will only apply to procurements that you start (advertise) from the Go Live date, you need to decide whether to press ahead and advertise now or wait until PCR 15 is in force. There will be different factors to consider depending on the route you want to go and what you are buying. For example, if your procurement relates to what is now classified as a “Part B” service, you might want to consider whether the “status” of the service will change under the new rules (e.g. whether it will be subject to full procurement regulation or whether it will be subject to the new “light touch” regime) before determining whether to expedite the process to procure it under the existing rules or wait until the new rules are in force.
2. Preparing your procurement documents:
Remember that if you are procuring under PCR 15 you need all your procurement documents ready before you press send on the OJEU notice. Can you comply with this or will it require you to defer the start date of your procurement? We await Government guidance on what is meant by “all your procurement documents” in the different processes but for now the assumption is that in circumstances where the process involves an iterative dialogue or negotiations process, the initial invitation (with supporting documents) to participate in the dialogue or negotiate documents should be ready at the time of submitting the OJEU notice, alongside the PQQ documentation.
3. Below threshold:
If you are procuring a below threshold contract then remember the new Lord Young Reforms will substantially come into force on 26 February. Understanding what your organisation has in the pipeline for these smaller value contracts should not be overlooked and ensuring that everyone in your organisation involved in procurement knows that they need to do to comply with these new rules after 26 February is of course key.
4. Procurement Policies:
Perhaps one of the biggest areas that our clients have been working on is updating their procurement policies – not least to capture the Lord Young Reforms. It goes further than that though – for example, do you have thresholds above which approvals are needed for changes to contracts to try and capture material change risk? Do you have guidance on when to use negotiated and competitive dialogue that needs updating now that the grounds are the same? This job should not be underestimated as your organisation’s policy document might prove crucial in demonstrating that appropriate guidance and internal rules were in place to ensure compliance, should you ever need to defend a procurement.
5. Procurement Report:
One of the biggest concerns of procuring bodies is the Regulation 84 Report and the need to keep records of areas like negotiations and the reasons for the rejection of tenders. Updating any standard reporting process you follow now is important for the Go Live Date. For the report to stand up to audit, and be good evidence if a challenge arises, it needs to be contemporaneous with decisions being made. If you decide to defer the start of a procurement that you have been working on until after the Go Live Date then you will need to make sure that your audit trail complies with your obligations even if you do not currently have a standard reporting process and/or a report template.
6. Standard Procurement Documents:
Not a small job to do but your standard procurement documents – PQQ, ITT, ITPD etc - all need to be reviewed for compliance. This would include updating them to provide for shorter timescales and new grounds for exclusion at the selection stage as well as to take into account changes at the evaluation stage with “best price-quality ratio” and “life cycle-costing” being provided for in PCR 15.
Equally as important is the need to future proof your contract documents. Ask yourself whether your contract gives you the protections in Regulation 72 on material change – are your change control and options “clear, precise and unequivocal” for example? We also recommend you provide for the contractual right (but not obligation) to terminate as required under Regulation 73 – for example, if there is a finding of material change – rather than relying on the implied terms. There are other ways too in which you can improve your standard contracting position in the light of the PCR 15 including, keeping control of novations and assignments in your contract terms so that you reduce the risk of such occurrences constituting a material change.
Many of our clients have undertaken extensive training and will just need to update their colleagues on the PCR 15. Others though have held off until the publication of the PCR 15 in its final form. Whatever stage you are at, and as it is less than three weeks to go until the Go Live Date, you need to decide what is right for your organisation to be ready to comply with PCR 15.
9. Phone a Friend:
Do you have a centre of excellence or a champion who can act as trouble-shooter for questions and guidance in your organisation as we all adjust to the new world of PCR 15?
10. Managing procurements in 2015 and beyond:
One of the common areas that we find clients trip up on when new rules come into force is remembering which sets of rules apply. As we go past the Go Live Date and continue to complete procurements in 2015 or later down the line when questions arise on completed procurements, remember to always check first which set of rules apply to a particular procurement: PCR 2015 or PCR 2006?