Ceri DelemorePartner, Commercial Services

Public Procurement Legislation Update

Aim

• to provide:• a brief reminder of the current position; and• a summary of the key changes under the new

rules

Why do we have public procurement rules?• the public sector is a major purchaser of

goods, works and services• there is a need to ensure that the significant

public sector market is opened up to competition

The current legal framework• EU Directives• UK Regulations • decisions of the European Court of Justice and

of the domestic courts• general Treaty principles

The new legal framework• EU Directives• UK Regulations • decisions of the European Court of Justice and

of the domestic courts• general Treaty principles

• Whenever:• a contracting authority • seeks offers in relation to public contracts• the value of which exceed the relevant threshold

value• and which are not expressly excluded

When do the rules apply?: current position

• Whenever:• a contracting authority • seeks offers in relation to public contracts• the value of which exceed the relevant threshold

value• and which are not expressly excluded

When do the rules apply?: new position

• April 2010: Commission review announced• January 2011: Green Paper published• June 2011: summary of response to Green

Paper published

What has been going on?

What has been going on?• December 2011: proposals for three new

directives published• lengthy and detailed discussions• 28 March 2014 directives published in OJEU

Why is change required?• simplification and “flexibilisation”• strategic use of public procurement to achieve

policy objectives• better access to market for SMEs and start-

ups• better value for money

• new public procurement directive• new regime for concession contracts• new utilities directive

Note: remedies directive remains in place

The new rules

• various definitions “clarified”/revised• no distinction between Part A and Part B

services• new regime for social services• possible lighter touch regime for local

authorities

The new rules: an overview of key changes

• codification and clarification of rules relating to “in-house” contracts and collaborations

• codification of rules relating to contract modifications: the creation of a safe harbour

The new rules: an overview of key changes

• poor performance as grounds for exclusion• contract award criteria: the positive and the

confusing!• mandatory e-procurement

The new rules: an overview of key changes

• shorter timescales• mandatory use of central purchasing bodies

for purchases of non-strategic goods/services?

The new rules: an overview of key changes

• procedures:• extended use of competitive with negotiation• new innovation partnership procedure

The new rules: an overview of key changes

• assisting SMEs• simpler information obligations• lots• limits on requirements

The new rules: an overview of key changes

• tougher rules on “abnormally low” bids• termination of contracts

The new rules: an overview of key changes

• “cut and paste”• but need to address options- various

discussion papers• timeline

UK implementation

Cardiff Derby Nottingham

Thank You

Contact details

Ceri DelemoreDD :029 2039 1712Mobile: 07802 368015ceri.delemore@geldards.com