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NIFHA Annual Conference 2014Great Homes, Thriving Communities
24 October 2014
Micaela Diver, A&L Goodbody
The new Public Procurement LandscapeHow the law interacts with commercial realities for Housing Associations
New Procurement Directives
• Public Contracts Regulations 2015 (Draft)
Directive 2014/24/EU
Public Procurement Directive
• Utilities Contracts Regulations (2015?)
Directive 2014/25/EU
Utilities Directive
• Concession (Contracts Regulations 2015?)
Directive 2014/23/EU
Transposition of Directives
Transposition
Deadline by 18 April 2016 (UK will have implemented before that date)Concessions - 2016
To note
Accelerated OpenNo Part B servicesSocial/Other servicesConcessions – thresholdNo changes to thresholds
To watch
Past performanceContract modificationsGreater use of negotiated procedureSheltered WorkshopsSocial criteria
Are Housing Associations caught by the Regulations?
Bodies governed by public law:
» Must meet three cumulative conditions:
– It has legal personality;
– It meets at least one of the following criteria:
a. It is financed for the most part by a contracting authority;
b. It is subject to management supervision by a contracting authority; or
c. It has a board more than half of whose members are appointed by a contracting authority;
– It is “established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character…”.
Does this cover all activities?
Is procurement a barrier to progress?
Common issues
Timing constraints
Capacity & performance
TUPE
Competition, bid rigging, collusive tendering
Approval process
Development Agreements
Works concession or property transaction?
Legal Test
» Set out in Helmut Muller
– Direct economic benefit to Contracting Authority
– Legally enforceable obligation to carry out works
– Requirements specified by Contracting Authority?
Basis of right of exploitation
Main object of contract
Getting the most out of procurement
Framework Agreements
Bespoke Procurement
Joint Ventures
Collaboration
Oversight body? Buying Group?
Approach to procurement
Good procurement
Good procurement compliance
Time for reform?
Legal change
Policy change?
The future of the European Union...?
QuestionsMicaela DiverAssociateT: +44 (0)28 9072 7592E: [email protected]