How the new Public Contracts Regulations 2015 will affect youRichard Auton Walker Morris LLPDirector

Extended Application

Part B services

Social and other Services

Concessions

Sub threshold

Use of new procedures

Competitive procedure with

Negotiation v CD

Innovation Partnership

Dynamic Purchasing System and Electronic Catalogues

Process

Lots

Variants

Conflict Rules

Communication

Advertising

PQQ

Exclusion

criteria

Guidance

Contract drafting

Change

Termination

Payment

Case law codification

Teckal Companies

Change

Public Co-operation

Issues under the Regulations

Changes to scope of procurement rules

• Part A and Part B distinction abolished All services will require

procurement under the Regulations if above threshold New regulations on sub

threshold

• New Procedure for Social Services

• Separate Directive for Concessions

Full Regulated Procedure

Social Services

Concessions

Sub-threshold

PCCR 2013

‒ Health, social and related services

‒ Administrative social, educational, healthcare and cultural services

‒ Compulsory social security services

‒ Benefit services

‒ Other community, social and personal services

‒ Religious services

‒ Hotel and restaurant services

‒ Legal services,

- to the extent not excluded pursuant to Article 10(ca)

‒ Other administrative services and government services

‒ Provision of services to the community

‒ Prison related services, public security and rescue services

‒ Investigation and security services

‒ International services

‒ Postal Services

‒ Miscellaneous Services

- Tyre re-moulding

- Blacksmith

Social and Other Specific Services

Special procedure

Threshold of £625,000

Contract Notice or continuous PIN

• May group quarterly

Contract Award Notice

• Light Touch Regime• Authority to determine

Procedure– specificities of the

services in question – compliance with the

principles of transparency and equal treatment

• Time limits to be reasonable and proportionate

• May use standard procedures or others

‒ Award of contracts to take into account:

- the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services;

- the specific needs of different categories of users, including disadvantaged and vulnerable groups;

- the involvement and empowerment of users;

- innovation; and

- any other relevant consideration.

Award

‒ All public contracts which are below relevant threshold

‒ Except

- otherwise exempt under Regulations

- sub £10k if central government

- sub £25k for other public bodies

‒ Publish on Contracts Finder

‒ Contract documents to be available free of charge

‒ Have regard to Cabinet Office guidance

Sub Threshold procedures

No pre-qualification stage allowed• except if works or Social care and the value is

above the relevant supplies and services threshold

May ask suitability assessment questions • only if the relevant and proportionate

Comply with Cabinet Office Guidance

Report Deviations

Assessing suitability

List of Offences updated and now

includes• terrorist financing• child labour and other

forms of trafficking in human beings as defined in Article 2 of Directive 2011/36

May disregard

• for overriding reasons relating to the public interest • Such as public health

or protection of the environment

• If disproportionate

Mandatory Exclusions

Discretionary exclusion at PQQ‒ Significant or persistent deficiencies in the performance of a

substantive requirement under

• a prior public contract,

• a prior contract with a contracting entity or

• a prior concession contract

- led to

• early termination of that prior contract,

• damages or

• other comparable sanctions

Limit on exclusion

Maximum period

• 5 years for mandatory exclusion

• 3 years for discretionary grounds

• Cannot exclude if show that measures taken by it demonstrate its reliability– compensation– active collaboration– technical, organisational and

personnel preventative measures

• Must state reasons if consider insufficient

• paying or binding arrangement to pay outstanding tax

• selecting economic operators to participate in procurement procedures, and

• deciding whether to exclude economic operators from such participation.

Authorities shall have regard to guidance issued by the Cabinet Office re:

• the use of questionnaires for the purposes of qualitative selection,• including the avoidance of burdensome, excessive or disproportionate

questions; • the assessment of information relevant to qualitative assessment.

Guidance may relate to:

Authority shall send to the Cabinet Office a report explaining the deviation

Cabinet Office PQQ Guidance

Standardised selection questions

• assessing supplier suitability for goods and services• embed into procurement processes• Only use those which are relevant and proportionate• May continue to use PAS91 for Works

Need to be able to justify reasons for any variation

• 'spot checks' under Mystery Shopper Scheme

Deviations from core/additional questions to be reported to the Cabinet Office within 30 days of the PQQ

• signed off by the Commercial Director, Head of Procurement or equivalent.

Guidance

Allow to self certify re mandatory/ discretionary grounds

Evidence following tender evaluation

• i.e. from the winning supplier only• sooner if necessary for proper conduct

Project specific questions must be proportionate and relevant

Guidance

Minimum financial thresholds clearly stated up front

• Methodology clearly articulated• not overly risk-averse• No deselection on turnover alone

Credit rating reports not the sole assessment tool

Details of up to three contracts, in any combination relevant to its requirement

Requirements clearly stated upfront

• suppliers should be allowed to self-certify that they meet these.

Guidance

Modification of a contract during its term considered a

new award

Will require new procurement unless within

listed exemptions

Modification during the term of the contract

Provided for in the initial procurement documents

• clear, precise and unequivocal review clauses or options• May include price revision clauses

• scope/nature of possible modifications or options• conditions under which used• not alter the overall nature of agreement

For additional works supplies or services that have become necessary and not included in the initial procurement

• Change of contractor cannot be made for economic or technical reasons• interchangeability or interoperability

• Significant inconvenience or duplication of costs for the Authority• Must not exceed 50% of original value

• Not cumulative so long as not circumventing Directive

Changes not needing procurement

Where the following cumulative conditions are fulfilled

• Brought about by circumstances which a diligent authority could not foresee

• Does not alter the overall nature of the contract• Must not exceed 50% of original value• Not cumulative so long as not circumventing

Where value of change (regardless of whether otherwise substantial)• Does not exceed relevant thresholds and • Below 10% of the initial contract value (15% for Works)• Net cumulative value of the successive modifications• Provided does not alter the overall nature of the contract

Changes not needing procurement

Modifications are not substantial as defined

• Irrespective of their value

Renders Contract or Framework materially different in character-• introduces conditions which could have led to different candidates,

tenderers or winner• changes the economic balance in favour of the contractor • in a manner which was not provided for in the initial contract

• extends the scope of the contract considerably• substitution of a new contractor

Changes not needing procurement

In accordance with unequivocal review clause or option

Universal or partial succession into the position of the initial contractor, following corporate restructuring including takeover, merger, acquisition or insolvency provided

• fulfils the criteria for qualitative selection initially established • does not entail other substantial modifications to the contract • not aimed at circumventing the application of the Directive.

Authority steps into position of Contractor vis a vis sub-contractors

Permitted substitutions

‒ Regulations may impose duties in respect of procurement

‒ Publish reports about compliance with the Regulations

‒ Minister may investigate the exercise of relevant functions relating to procurement

‒ Authority to provide documents /information and give assistance

‒ May include an investigation of:

- preparations for procurement, and

- management of a contract

Small Business, Enterprise and Employment Act 2015

Contact

‒ Richard Auton+44(0)113 283 2500

richard.auton@walkermorris.co.uk

Questions