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© 2016 Achilles Information Limited | Confidential
Public Contract Regulations – One year on
Debbie Metcalfe LLM MSc MCIPS
17th March, 2016
© 2016 Achilles Information Limited | Confidential
Achilles Consultancy and Training
• Provide EU Services
• Open courses
• In-house courses
• Achilles EU Academy
• Email and telephone support via THEMiS
• EU Consultancy
• Development of bespoke procurement training
© 2016 Achilles Information Limited | Confidential
Today’s agenda
• Pre procurement engagement
• Electronic Procurement
• Procedures where negotiation is permitted
• ESPD
• Key changes to selection & award criteria and exclusions
New 2015 Procurement Contract Regulations
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© 2016 Achilles Information Limited | Confidential
Timetable
• 28 March 2014
• EU Directives – Public/Utilities/Concessions published in OJEU
• 26 February 2015
• The Public Contracts Regulations 2015 (PCR 2015)
• PPN & CCS guidance continues to be issued
• 18 April 2016
• The Utilities Contracts Regulations 2016
• The Concessions Contract Regulations 2016
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© 2016 Achilles Information Limited | Confidential
Pre-Procurement Engagement Regulation 40
• Expressly provided for
• Indicates best practice
• Communication is key to management
• Concern with ensuring competition is not distorted
• PIN often seen as a suitable non-discriminatory means of sourcing potential suppliers (although not stated in Directive)
Pre-market/
Pre-procurement engagement
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© 2016 Achilles Information Limited | Confidential
Prior involvement of candidates or tenderers
• The contracting authority cannot automatically ban that economic
operator from participating in the procurement process. The
contracting authority must, however, take “appropriate measures” to
ensure that competition is not distorted by the participation of that
economic operator.
• Codification of the C-21/03 and C-34/03 Fabricom SA V Belgium
State
• What are appropriate measures?
• Article 41 sets out two requirements
Regulation 41
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© 2016 Achilles Information Limited | Confidential
Electronic Procurement
• Regulation 53 (1) - Offer unrestricted and full direct access free of
charge to the procurement documents on-line (from date of
publication of contract notice or invitation to confirm interest)
• Regulation 53 (3) Provides that exemptions for special
communication requirements or protection of sensitive information are
permitted. Reflected in Regulation 21 (1) and 22 (3)
• Have to extend minimum
timescale by 5 days if the above apply
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© 2016 Achilles Information Limited | Confidential
Electronic Procurement
• Where individual regulations refer to “procurement documents”, what
is meant by that wording changes based on the different stages of the
process that has been reached … at very early stages, fewer of the
documents, if any, would be included. We believe a purposive
interpretation is appropriate here.
• Is this a U-turn ?
CCS – Guidance on Electronic Procurement 17 September, 2015
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© 2016 Achilles Information Limited | Confidential
Electronic Procurement
• Contracting Authorities need to be mindful that this the UK
governments interpretation legislation and is by no means a risk free
approach, not yet been tested in court.
• Best practice
• Openness and Transparency
• Speed – Time scales have been reduced
• Recitals (52) reflects that the availability of electronic documents
provides for efficiency and transparency
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© 2016 Achilles Information Limited | Confidential
Procedures
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© 2016 Achilles Information Limited | Confidential
Procedures where negotiation is permitted
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• There are 3 formal procedures where Negotiation is permitted, but
must be justified.
• The Competitive Procedure with Negotiation (CPN)
• Competitive Dialogue (CD)
• The Innovation Partnership procedure
• These procedures reflect Recital 42 of the 2014 Directive, which
reflects the need for increased flexibility for negotiation
© 2016 Achilles Information Limited | Confidential
Availability of Procedures
• Following an Open or Restricted procedure only irregular or unacceptable tenders are submitted
• Requirements involve design or innovative solutions
• Need adaption of readily available solutions - effectively not ‘off the shelf’
• Complexity or legal and financial make-up or risks attached
• Can’t establish specification by reference to existing standard
Easier to justify negotiation via CPN and CD, justification is
identical for both procedures,
Regulation 26 (4)
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© 2016 Achilles Information Limited | Confidential
Competitive Procedure with Negotiation
Define minimum requirements and award criteria in procurement
documents
Negotiation with tenderers to improve the content
• Negotiate on the initial and all subsequent tenders
• Cannot negotiate on minimum requirements or the award criteria.
• Can reserve right NOT to negotiation
• May conduct in stages to reduce number of bidders
On conclusion of negotiation will call for new or revised tender
• Verify that final tenders in conformity with min requirements
• Assess final tenders on basis of award criteria
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© 2016 Achilles Information Limited | Confidential
Role of Competitive Dialogue Procedure
Define minimum requirements and award criteria in procurement documents
• Cannot negotiate on minimum requirements or the award criteria
• Enter into dialogue with selected bidders
• Many be several phases of dialogue
• No prescribed time scales for dialogue or return of tenders
Tenders received after close of dialogue may now be
“clarified, specified and optimised” Changes to the
‘essential aspects’ of the tender cannot be made.
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© 2016 Achilles Information Limited | Confidential
Role of Competitive Dialogue
Does Competitive Dialogue have any advantages?
Public Sector Competitive procedure with negotiation prohibits negotiation on final tenders.
Negotiations now expressly permitted with preferred bidder to ‘confirm financial commitments or other terms’ (cannot change essential aspects)
• More scope for post tender negotiations in Competitive Dialogue?
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© 2016 Achilles Information Limited | Confidential
Innovation Partnerships
• Structured partnership
• One or more partners
• Successive stages following the sequence of steps in the research and innovation process Possibly up to the manufacturing of the supply or provision of services
• Intermediate targets
• Payment in appropriate instalments
• May terminate partnership at each stage (or reduce partners where more than one)
• May negotiate
• Ensure structure of partnership reflects degree of innovation
• Minimum requirements and award criteria not subject to negotiation
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© 2016 Achilles Information Limited | Confidential
European Single Procurement Document
(ESPD)
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© 2016 Achilles Information Limited | Confidential
ESPD - Regulation 59
• As of the 26th January 2016, Contracting authorities’ are now legally
required to accept the ESPD from bidders as part of their response to
the selection stage process.
• What does this mean ?
• Is this a duplication of the Standard PQQ ?
• Recital 84 - can request supporting documents where it is considered
to be necessary for the proper conduct of the procurement procedure.
• Online only from 18 April 2017
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© 2016 Achilles Information Limited | Confidential
Key changes at Selection Stage
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© 2016 Achilles Information Limited | Confidential
Key changes – selection stage
• Conflict of interest - Regulation 24
• ‘Contracting authorities shall take ‘appropriate measures’ to
effectively prevent, identify and remedy conflicts of interest’ ‘
• What are ‘appropriate measures ?
Counted4 Community Interest Company v Sunderland City Council
Alleged breach of Regulation 24
Additional discretionary exclusions
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© 2016 Achilles Information Limited | Confidential
Key changes – selection stage
• Poor past performance
• Self-cleansing provisions
• Maximum 5 years from relevant judgment for mandatory exclusions
• Maximum 3 years from relevant event for discretionary exclusion
Additional discretionary exclusions
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© 2016 Achilles Information Limited | Confidential
Selection Stage - Additional Mandatory Exclusi
• Conviction for terrorist offences or offences linked to terrorism
• Conviction for terrorist financing
• Conviction child labour offences and human trafficking
• Obligations relating to payment of taxes or social security
• Apply where conviction by final judgment (or judicial / administrative
decision in the case of non-payment of taxes or social security)
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© 2016 Achilles Information Limited | Confidential
Key changes at Award Stage
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© 2016 Achilles Information Limited | Confidential
Key changes – Award Stage
• Codifies Slovensko case
• Must Investigate
Changed rules on abnormally low
tenders.
• Price Quality Ratio
• Life-cycle costing expressly permitted
• Can still award on lowest price MEAT
• Codifies Lianakis case
• Should ensure by contractual means that staff can only be replaced by consent and verified. (Recitals)
Merits of staff assigned to the contract – qualifications /
experience.
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© 2016 Achilles Information Limited | Confidential
Achilles Consultancy & Training
Fareita Udoh Head of Achilles Consultancy & Training
Daniel Bremner Associate Account Manager
Jayne Wellman Administrator
Trainers
Liz Wilson-Lamb Senior Training Consultant
Debbie Metcalfe EU Procurement Advisor and Trainer
Kate Pucci EU Procurement Advisor and Trainer
Steve Kay EU Procurement Advisor and Trainer
Associates
Professor Sue Arrowsmith Legal Expert
The Team
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© 2016 Achilles Information Limited | Confidential
Materials Disclaimer
The information in this presentation, which does not purport to be
comprehensive, is provided by Achilles Information Limited and has not
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While this presentation has been prepared in good faith, it is not, and
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