The draft Public Contracts Regulations 2015 (the Regulations) have finally been published, but there’s still no implementation date in sight.
Following the European Commission’s adoption of the new procurement Directives last year, the UK government promised an ambitious implementation timetable. Draft Regulations were published in September, followed by a brief consultation period.
At the date of writing, there’s still no implementation date, though it’s hoped that the Regulations will come into force prior to the general election.
The Directive decreed that Part B Services, currently exempt from the full scope of the rules, must be advertised where their value exceeds E750,000. The Government, tasked with coming up with a procedure to advertise these services, has taken a “light touch” approach. Advertisements should begin with a Contract Notice and end with a Contract Award Notice. Otherwise, contracting authorities can develop their own procedures, provided that they comply with EC Treaty principles of transparency and equal treatment.
In keeping with the Commission’s goal of making public procurement more accessible to SMEs, there are a number of new provisions:
• Contracting authorities are encouraged to divide contracts into lots, and will have to give reasons for why lots are not used. The
current “aggregation rule”, which requires grouping of works of a similar nature into larger packages, has been removed from the Regulations, presumably to reflect the push towards use of lots;
• Bidders will be able to self-declare details of economic and financial standing and technical ability in the European Single Procurement Document. As the Commission hasn’t yet published a template, our Government may have to develop a temporary solution.
The most surprising additions to the Regulations are new rules applying to “sub-threshold” public contracts. Central government and local authorities don’t have to advertise contracts less than £25,000 and £10,000 respectively. All other contracting authorities must advertise
sub-threshold contracts in the Contracts Finder, unless they are awarded via a pre- selected list or a framework arrangement.
Pre-qualification stages are prohibited for sub-threshold contracts, though contracting authorities may still ask for “suitability assessment” questions about bidders’ past experience and qualifications. Award decisions must also be advertised in the Contracts Finder.
Contracting authorities must ensure that their contractors and sub-contractors are paid within 30 calendar days of receipt of an undisputed invoice. Authorities who do not follow these rules will be required to publish annual statistics about their failings and levels of penalty interest accrued as a result of their failure to comply.
For more information contact John Forde, Senior Associate, or Rebecca Rees, Partner, Projects and Construction, Trowers & Hamlins
t: 020 7423 8353
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