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Kim Postlethwaite

Timescales under the 2015 Public Contracts Regulations – updated

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We regularly receive queries regarding the minimum timescales that apply in each type of procurement procedure. These timescales specify the number of calendar days required between a notice being sent to the Official Journal of the European Union (OJEU) for publication and the deadline for submission of responses.

The timescales can often cause concern with both suppliers and buyers due to the delay between submission of a notice to the OJEU and it’s publication. It can take at least 48 hours for a notice to be published after it is submitted, during which time there is an embargo on it being advertised nationally (for more information please see this blog).

Continue reading “Timescales under the 2015 Public Contracts Regulations – updated”

Regulation Day

At the beginning of this week we saw a number of regulations being transposed in the UK. These are as follows:

Public Contracts (Scotland) Regulations 2015

New regulations transposing the 2014 EU Public Procurement Directive were laid in the Scottish Parliament on 18th December 2015 and came in to force earlier this week, 18th April 2016.

A brief summary of the changes that will affect Contracting Authorities are as follows: Continue reading “Regulation Day”

An Update on Framework Agreements

What is a Framework Agreement?

The Public Contracts Regulations 2015 came into force in February 2015 and defined a Framework Agreement under Regulation 33 as:

“an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate the quantity envisaged”.

Continue reading “An Update on Framework Agreements”

Who am I? Central or Sub-Central Organisation? And why does it matter?

Contracting Authorities are divided into two types of organisations under both the 2014 EU Directive and 2015 UK Regulations. These are:

Central Government Authorities
Sub-Central Contracting Authorities

So which are you? And why is it important to know?
Continue reading “Who am I? Central or Sub-Central Organisation? And why does it matter?”

The 2015 Regulations on the aggregation of contracts and the use of Lots

The aggregation of contracts refers to the grouping together of similar contracts. The requirement to aggregate contracts is not a new obligation however has been the subject of much confusion in the past. This blog post will aim to clarify when requirements are to be aggregated for the purpose of calculating the value of a contract and, more importantly, when specific Lots can be exempt from the rules. Continue reading “The 2015 Regulations on the aggregation of contracts and the use of Lots”

The 2015 Regulations on Electronic Submission of Tenders

As discussed in my previous blog post, the new 2015 Regulations have brought in new requirements surrounding the issuing of procurement documents electronically. In addition to this the new Regulations have also brought in incentives for contracting authorities to require electronic submission of tenders. Under the EU rules this will also need to be made mandatory by the UK Government in the next few years. This blog post will focus on what the new rules currently say and what the future may hold. Continue reading “The 2015 Regulations on Electronic Submission of Tenders”

The 2015 Regulations on Electronic Documents

The new 2015 Regulations have brought in new requirements surrounding the issuing of procurement documents. This blog post will focus on these new requirements and the key points that both contracting authorities and suppliers should be aware of.

What were the rules previously?

Under the previous 2006 Public Contracts Regulations providing access to documents electronically was optional but incentivised with a reduction of the OJEU time limits applicable if documents were made available in this way.

What are the new rules?

Simple Answer: All documents must be provided electronically (on a website) from the start of the procedure.

Regulation 53 of The Public Contracts Regulations 2015 is devoted in its entirety to the “electronic availability of procurement documents”. This new regulation declares that “contracting authorities shall, by means of the internet, offer unrestricted and full direct access free of charge to the procurement documents” from the point of publication or invite. The regulations continue by specifying that the “internet address at which the procurement documents are available” must be included in the text of the notice or ITT.

What documents need to be made available?
Continue reading “The 2015 Regulations on Electronic Documents”

Remedies for NHS Procurement breaches and the role of Monitor

Breaches in procurement can be due to a number of reasons such as deliberate breaches and accidental breaches. It can be said that deliberate breaches are unlikely to occur as it can risk the reputation of the contracting organisation. Accidental breaches may arise where national regimes apply to numerous low value contracts and responsibilities are assigned to separate parts of the organisation. Monitor is the sector regulator for health services in England and aim to make the health sector work better for patients. This is an executive non-departmental public body that are sponsored by the Department of Health. This blog will explore the remedies available for NHS procurement breaches under the Public Contracts Regulation, Judicial Review and on the NHS (Procurement, Patient Choice and Competition) Regulations 2013 (No 2) enforced by Monitor.

Under the Public Contracts Regulations 2015 many claims have been successful in obtaining satisfactory remedies through the courts for procurement for supplies and for Part A services. Arguably, there are few instances where there are really effective remedies through the Courts in procurement for community care and primary care services.

Public Contracts Regulation

Continue reading “Remedies for NHS Procurement breaches and the role of Monitor”

Publication of OJEU notices at national level – the 48 hour publication rule

The rules on when an OJEU notice can be advertised nationally have changed. This blog post will aim to clarify the new rules and discuss the benefits and shortcomings of these new rules.

What are the rules?

Under the new legislation OJEU notices are now not to be published nationally until AFTER they have been published in the journal or 48 hours from the point of dispatch to OJEU (Article 52 of the 2014 EU Directive transposed in Regulation 52 of the Public Contracts Regulations 2015). The addition of the “or 48 hours from dispatch” is likely to be due to the fact that OPOCE (the publication office for OJEU) have 5 working days to publish a notice, if they were to exercise this full 5 working days then this may adversely affect the time the notice is publicly advertised for.

In addition, for contracting authorities in England, Regulation 106 states that OJEU notices MUST be published on Contracts Finder within 24 hours of them appearing in OJEU.

Please note that the minimum timescales for a notice to be advertised continues to be from the point the notice is dispatched to OJEU and NOT the point the notice is published. The legislation does continue to state that “adequate” time must be given so some consideration should be given to the delays caused by these new rules.

How has this changed?

Previously there was not a statutory obligation to advertise in Contracts Finder and an OJEU notice could be advertised nationally as soon as it was dispatched to OJEU (Article 36 of the 2004 EU Directive transposed in Regulation 42 of the Public Contracts Regulations 2006).

What does this mean in practice? Continue reading “Publication of OJEU notices at national level – the 48 hour publication rule”

‘Part B Services’ verses ‘Light Touch Regime’

Under the new regulations ‘Part B services’ have been abolished and replaced with the new ‘light touch regime’. Below we cover what the new rules are, what has changed and whether this is a change for the better.

Part B Services: What were the rules?

Under the previous regulations all services were split into two – Part A and Part B. All services fell into one of 27 service categories – service categories 1-16 were Part A and subject to the full procurement regulations whereas service categories 17-27 were Part B and were essentially exempt from the rules (although an award notice was required). The service category that the service fell under was determined by the CPV codes. The purpose of this was to exempt services which were considered to not have cross border interest from the strict EU publication rules. Services are considered to not have cross border interest when it is unlikely that a service provider in one country can (or will be willing to) provide their service in a different country – for example, hotel services or legal service.

However, part B was occasionally taken advantage of and notices that did have cross border interest were incorrectly excluded from the rules. This was often due to the use of service category 27 which was “Other services” and covered any service that did not fall into the CPV codes listed under any of the other, more specific, service categories 1-26.

Light Touch Regime: What now?

When reviewing the legislation it was deemed that services with no cross border interest do still need to be treated differently however, much discussion took place to determine WHICH services were to be considered to not have cross border interest and WHAT the rules would be. Continue reading “‘Part B Services’ verses ‘Light Touch Regime’”

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