Public Contract Regulations One year on Debbie Metcalfe LLM MSc MCIPS - Chartered Institute of...

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Public Contract Regulations – One year on

Debbie Metcalfe LLM MSc MCIPS

17th March, 2016


Achilles Consultancy and Training

• Provide EU Services

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• EU Consultancy

• Development of bespoke procurement training


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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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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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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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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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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• 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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• 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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Procedures

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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


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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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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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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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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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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European Single Procurement Document

(ESPD)

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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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Key changes at Selection Stage

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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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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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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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Key changes at Award Stage

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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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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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Materials Disclaimer

The information in this presentation, which does not purport to be

comprehensive, is provided by Achilles Information Limited and has not

been independently verified.

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does not purport to, offer the recipient legal advice. No representation,

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All and any such responsibility and liability is expressly disclaimed.

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