Regulatory Timeline: Regulated Procurement

“2015 will be a year of major change in the regulated procurement sphere. The new Public Contracts Regulations 2015 come into force on 26 February and draft legislation to implement the new EU Utilities Contracts and Concessions Directives is expected to be published for consultation in the summer. The Technology and Commercial Court is working with the legal community to produce a protocol to define the route to court for challenges to procurement decisions and we may see the first move toward a Procurement Tribunal in the UK if Scottish proposals get off the ground.”

26 February 2015 – Public Contract Regulations 2015 enter into force

New Regulations for tendering for contracts with the public sector came into force in England, Wales and Northern Ireland on 26 February 2015 by way of the Public Contracts Regulations 2015 (PCR 2015).

Except for the new light touch regime, any qualifying procurement procedure started by a contracting authority after that date will be governed by the PCR 2015. All procurement processes commenced before then will continue to be governed by the Public Contracts Regulations 2006 (PCR 2006).

The PCR 2015 implement an EU Directive that was negotiated at length between Member States. The Government’s view is that the 2015 Regulations ‘deregulate and simplify’ the rules that public authorities must follow when they run tenders for contracts (for anything from major infrastructure projects to IT services), and make it easier for SMEs to win work in the public sector.

The Cabinet Office is due to publish further guidance for implementing the PCR 2015.

30 April 2015 – Deadline for responses to a consultation on changes to the public procurement rules in Scotland

On 9 February 2015, the Scottish Government issued a consultation on changes to the public procurement rules in Scotland. The changes are required to implement the EU Procurement Directives that were published in the OJEU in March 2014 and must be transposed into Scottish law by April 2016. The consultation seeks views on those aspects of the new Directives where the Scottish Government has a choice about whether to, or how best to, implement changes.

In addition, the consultation paper discusses elements of the Procurement Reform (Scotland) Act 2014 that have yet to be implemented in Scottish Regulations or Guidance. In particular, it seeks views on whether some of the new requirements of the EU Directives should be applied to lower value contracts regulated by the Act.

Among other considerations, the Scottish Government is considering whether there is a need for a review body that sits beneath the national courts, whether any such review body should be established as a tribunal within the Scottish tribunals system, or whether there should, instead, be another body, such as a Scottish Procurement Ombudsman.

Responses to the consultation are invited by 30 April 2015. The Scottish Government intends to use the responses to this consultation to inform the drafting of new Scottish Procurement Regulations. It intends to implement the new Regulations by the end of 2015.

1 June 2015 – Anticipated Review of Roadmap for EU Defence single market

On 24 June 2014 the European Commission presented a roadmap for measures to strengthen the single market for defence, to promote a more competitive defence industry and to foster synergies between civil and military research, including details and timelines for actions. We expect to see a number of interim reports on progress in this area, but the European Commission has indicated that a full review will be published in June 2015. Among other issues, it is expected that the review will address access to the market for small and medium-sized enterprises.

1 June 2015 – Launch of European Commission evaluation of Defence Procurement Directive 2009/81/EC

Directive 2009/81/EC sets EU rules for the procurement of arms, munitions and war material (plus related works and services) for defence purposes, but also for the procurement of sensitive supplies, works and services for security purposes.

In this project, due to report back to the European Parliament by August 2016, the Commission will evaluate to what extent the objectives of the Directive have been achieved with regard to the functioning of the internal market and the development of a European defence equipment market and a European Defence Technological and Industrial Base.

1 June 2015 – Practice direction for procurement disputes

The Civil Procedure Rule Committee (CPRC) meeting minutes for 7 November 2014 suggest that Mr Justice Coulson is considering a framework for handling public procurement disputes in the Technology and Construction Court (TCC), including prioritisation, listing and the timing of cases. He has indicated that he will consider the approach and return to the CPRC in 2015 with a paper. This is due to the significant increase in procurement disputes in the TCC.

Osborne Clarke is contributing to the development of the new TCC protocol though our membership of the Procurement Lawyers’ Association.

1 July 2015 – Government plans for draft regulations and consultations in relation to the transposition of EU Directives on concessions and utilities procurement

At the same time as the new Public Contracts Directive 2014/24/EU, the following Directives also came into force in March 2014:

• Directive 2014/23/EU on the procurement of concessions contracts; and
• Directive 2014/25/EU on procurement by utilities.

The Government intends to publish draft regulations implementing these directives in 2015. It will also carry out a consultation and training events on the new regulations.

18 April 2016 – ‘Light Touch’ regime of the Public Contract Regulations 2015 comes into force

In place of the previous distinction between Part A and Part B services in the PCR 2006, the PCR 2015 introduce a new ‘light-touch’ procurement regime for social and other specific services.

Where this regime applies, contracting authorities will need to advertise contracting opportunities and follow a process that complies with the obligations of principles of fairness, equal treatment and transparency. However, beyond that, authorities will have a choice in how they run tender exercises and the evaluation criteria that they can take into account when awarding contracts. Along with looking at which tender offers the best value, authorities can take into account the need to ensure quality, continuity, affordability and the needs of users.

The light-touch regime has a much higher threshold (Euro750,000). Contracts for specified services falling below this threshold will also be governed by the parallel regime under the NHS (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013. Given the challenges of operating these two parallel regimes, the light-touch regime will not take effect until 18 April 2016. Until that time the specified services will continue to be required to be procured as Part B services.