Do you provide services to public sector bodies? Do you want to? Whether your customer or target is part of government, or an independent publicly-funded institution such as a hospital or university, you should be aware of the Public Contracts Regulations 2015. These changes, the majority of which came into force this week, offer greater flexibility in public authority purchasing and increased visibility and supplier access.
We highlight below some of the changes that may affect you.
Greater timetable flexibility when contracting with ‘sub-central’ bodies
What are sub-central bodies? They are organisations deemed to be contracting authorities by the procurement rules, but not included in the list of ‘Central Government Authorities’ (covering the main Whitehall departments, NHS Trusts, GCHQ and major museums and galleries). Examples of sub-central bodies are most universities and local authorities.
They will now be able to ask suppliers to agree to shorter timescales for the bidding process. Safeguards will apply to prevent suppliers being pressurised on timing where, for example, major changes to the procurement process or the terms and conditions are proposed.
A new requirement for all procurement documents to be made available electronically from the date that the contract is advertised
Assuming that contacting authorities manage to meet this requirement (as it will require a change in current standard practice) this should give bidders more time to prepare their proposals, even during the selection stages.
Statutory confirmation that contracting authorities may engage with potential suppliers and experts
Contracting authorities will be able to discuss their plans externally before finalising and advertising a planned procurement, provided that doing so doesn’t prejudice competition and is transparent.
New procurement procedures
New procedures such as innovation partnership and competitive dialogue with negotiation will offer greater opportunities for flexibility, dialogue and negotiation with contracting authorities
A new statutory right to see contract opportunities and awards
Guidance to prevent the use of onerous selection criteria that could, for example, rule out smaller providers will be given statutory “teeth” for the first time
This should curtail onerous demands at the selection stage, such as a requirement for turnover to be at least three times the value of the contract.
Statutory regulation of under-threshold contracts for the first time for low-value tenders
This change will mean that contracts as low in value as £10,000 (or £25,000 for ‘sub-central’ contracting authority procurements) will become subject to certain rules on advertising, and a ban on use of a selection (PQQ) stage.
New rules on division of contracts into lots
These new rules should make it easier for contracting authorities to involve smaller providers in a large project.
New statutory requirements that contracting authorities pay invoices within 30 days (and ensure that their supply chain does likewise)
This will benefit the cash flow position particularly of smaller suppliers.
Services contracts: the old distinction between “Part A” and “Part B” services disappears and is replaced by the new ‘light touch’ regime
The 'light touch' regime covers health, social and some other services contracts falling within the Common Procurement Vocabulary (CPV) codes listed in Schedule 3 of the new regulations. For these contracts, a higher threshold than that for ordinary service contracts will apply, before the regime is applicable, and the regime offers more flexibility to contracting authorities. The threshold is currently EUR 750,000.
Note, however, that this “light touch” regime does not (yet) apply if the contract is for health services within the scope of the NHS Regulations. While the majority of former “Part B” services fall within “light touch”, don’t assume they do as there are some notable exceptions (including no catch all “other services” category). Those services which are not expressly identified in Schedule 3 will now be subject to the full regime.
No change to the remedies regime
Where a contract is fully subject to the procurement rules, contracting authorities suppliers retain the right to receive a compliant Award Decision Notice containing debrief information, and to suspend the award of the contract by making a claim during the ten-day standstill period.
If you are interested in learning more about these changes and how your business could benefit, get in touch with our team.