New UK Procurement Rules Published for Consultation

Draft new Public Contracts Regulations 2015 and a Consultation Document on UK Transposition of the new EU Procurement Directives have recently been published by the Cabinet Office. This paves the way for the 2014 Directives to be implemented in the UK early next year.

The draft Regulations are divided into six broad categories:

1. General – commencement dates, definitions, and the extent and application of the draft Regulations;

2. Rules implementing the Public Contracts Directive – scope and general principles, rules on public contracts, including choice of procedures, particular procurement regimes, and records and reports;

3. Remedies – including applications to the court;

4. Below-threshold procurements – the draft Regulations contain a number of specific requirements for the procurement of lower value contracts;

5. Miscellaneous Obligations; and

6. Revocations, consequential amendments, savings and transitional provisions.

It is worth noting that healthcare commissioning will fall outside the scope of the new Regulations until 18 April 2016 (when the UK's new 'light touch regime' comes into force). The existing Part B services regime will continue to apply to health and social services until that date.

Principal changes

As discussed in a previous Tech Hub update, the main changes that the new procurement rules will bring about include the following:

• constraints on using the negotiated procedure will be relaxed;
• there will be a much simpler process for assessing bidders’ credentials;
• it will be possible to exclude bidders on the grounds of poor performance under previous contracts;
• the statutory minimum time limits by which suppliers must respond to advertised procurements and submit tender documents will be reduced;
• purchasers can take into account the relevant skills and experience of individuals at the award stage, where relevant;
• various improved safeguards from corruption have been inserted, including specific safeguards against conflicts of interest and
  illicit behaviour by candidates and bidders, such as attempts improperly to influence the purchasers’ decision-making process or collusion; and
• a cornerstone of the modernisation process will be the promotion of electronic procurement systems, the use of which is to become mandatory in less than five years.

The new rules are also designed to save companies a lot of initial paperwork, making the process of bidding for public contracts quicker, less costly, and less bureaucratic, and include:

• a greater emphasis on award criteria such as quality, environmental considerations, social aspects, innovative characteristics, and staff experience, while still taking into account full life-cycle costings;
• a standard “European Single Procurement Document” form in all EU languages;
• an obligation on public authorities to share information on eligible bidders from national databases – designed to make it easier for companies to bid;
• a system based on self-declarations where only the winning bidder has to provide original documents; and
• an 'Innovation Partnerships' procedure enabling public authorities to call for tenders to solve a specific problem without indicating what they believe the solution to be (i.e. allowing for negotiation).

Despite these changes, the rules on public procurement remedies will remain largely the same. For example, the 10 day minimum standstill period between notifying the award decision and contract execution, and the 30 day window to commence litigation, remain unchanged.

Comment

The Cabinet Office seeks responses, by 17 October 2014, to a number of specific questions set out in the Consultation Document. It also invites comments on the draft Regulations by the same deadline.

We anticipate that the new Regulations will come into force in Spring 2015, in line with the Government's aim for early implementation of the new EU Procurement Directives in the UK.