Public Procurement Legislation Update
Ceri Delemore
Partner, Commercial Services
Aim
• to provide:
• a brief reminder of the current position; and
• a summary of the key changes under the new
rules
Why do we have public procurement rules?
• the public sector is a major purchaser of
goods, works and services
• there is a need to ensure that the significant
public sector market is opened up to
competition
The current legal framework
• EU Directives
• UK Regulations
• decisions of the European Court of Justice and
of the domestic courts
• general Treaty principles
The new legal framework
• EU Directives
• UK Regulations
• decisions of the European Court of Justice and
of the domestic courts
• general Treaty principles
When do the rules apply?: current
position
• Whenever:
• a contracting authority
• seeks offers in relation to public contracts
• the value of which exceed the relevant threshold
value
• and which are not expressly excluded
When do the rules apply?: new
position
• Whenever:
• a contracting authority
• seeks offers in relation to public contracts
• the value of which exceed the relevant threshold
value
• and which are not expressly excluded
What has been going on?
• April 2010: Commission review announced
• January 2011: Green Paper published
• June 2011: summary of response to Green
Paper published
What has been going on?
• December 2011: proposals for three new
directives published
• lengthy and detailed discussions
• 28 March 2014 directives published in OJEU
Why is change required?
• simplification and “flexibilisation”
• strategic use of public procurement to achieve
policy objectives
• better access to market for SMEs and start-ups
• better value for money
The new rules
• new public procurement directive
• new regime for concession contracts
• new utilities directive
Note: remedies directive remains in place
The new rules: an overview of key
changes
• various definitions “clarified”/revised
• no distinction between Part A and Part B
services
• new regime for social services
• possible lighter touch regime for local
authorities
The new rules: an overview of key
changes
• codification and clarification of rules relating
to “in-house” contracts and collaborations
• codification of rules relating to contract
modifications: the creation of a safe harbour
The new rules: an overview of key
changes
• poor performance as grounds for exclusion
• contract award criteria: the positive and the
confusing!
• mandatory e-procurement
The new rules: an overview of key
changes
• shorter timescales
• mandatory use of central purchasing bodies
for purchases of non-strategic goods/services?
The new rules: an overview of key
changes
• procedures:
• extended use of competitive with negotiation
• new innovation partnership procedure
The new rules: an overview of key
changes
• assisting SMEs
• simpler information obligations
• lots
• limits on requirements
The new rules: an overview of key
changes
• tougher rules on “abnormally low” bids
• termination of contracts
UK implementation
• “cut and paste”
• but need to address options- various
discussion papers
• timeline
Thank You
Cardiff
Derby
Nottingham
Contact details
Ceri Delemore
DD :029 2039 1712
Mobile: 07802 368015
[email protected]