Cabinet Office Policy Note on the new EU Directives

A couple of weeks ago, we blogged on the provisional agreement on the text of new Directives on public procurement, utilities procurement and service concessions that has been reached in Europe. Following this, the Cabinet Office has issued a Procurement Policy Note:

• the new Directives are expected to be finalized in Autumn of this year (we note that the plenary session of the European Parliament is scheduled for 22 October);
• while the UK will then officially have a period of two years in which to implement the new Directives the Cabinet office envisages an ambitious transposition timetable which means we are likely to have a new procurement regime in the UK sooner rather than later;
• the new rules will only apply to procurements commenced after the regime change in the UK and the Cabinet Office proposes to issue guidance to accompany the new legislation; and
• the Cabinet Office notes that there is very limited scope for substantial amendments to the new Directive apart from in those areas where the Directives allow member states a choice. On these points the government intends to consult relevant stakeholders.

The PPN contains a very helpful Annex A which sets out all the key changes that the new Directives will bring for example (and non-exhaustively):

• the PQQ process will be more straightforward with greater use of self-certification by bidders and only the winning bidder needing to provide certificates and supporting evidence;
• it will be possible to exclude bidders for poor performance;
• time limits for procurement procedures will be shortened by about a third;
• use of the negotiated procedure will become available for all procurements which are not off the shelf and a new innovative partnership procedure will be available;
• the distinction between Part A and Part B services will be abolished (of which more below);
• contracting authorities will be able to reserve contracts for certain mutual/social enterprises (for a limited period);
• relevant skills and experience may be taken into account at award stage as well as during selection; and
• mandatory e-procurement (of which more below).

At Annex B the PPN lists the areas where the UK will have some choice in how to implement the Directive where stakeholders are invited to comment on preferred options. For example (and this is not an exhaustive list by any means):

• with the distinction between Part A and Part B services to be abolished the new public procurement Directive will bring with it a 'light touch' regime for social health and some other services such a regime to be devised at national level. While there will be an obligation to advertise these contracts in the OJEU the threshold for triggering the application of rules to these contracts (EUR 750 000). The Cabinet Office is consulting on how the light-touch regime should work in the UK;
• the new Directive requires contracting authorities to take 'appropriate measures' to identify prevent and remedy conflicts of interest and to ensure that bidders comply with relevant social environmental and employment law. The Cabinet Office is consulting on whether the new Regulations should specify the kinds of measures that would be appropriate and if so what measures should be used?
• the new Directive requires the UK to decide on the maximum period (subject to a self-cleaning process) for which a bidder may be excluded from a competition. The Cabinet Office will consult on whether the UK should use the maximum three- and five-year periods suggested by the Directive or opt for shorter periods;
• the Directive gives member states the right to delay the requirements around e-procurement until 30 months after the two-year transposition deadline. The Cabinet Office is consulting on whether the UK should adopt this approach;
• the new Directive requires the UK to ensure that contracting authorities are entitled to terminate contracts ?under certain circumstances determined by UK law?. The Cabinet Office is consulting on what these circumstances should be; and
• the Cabinet Office will also be asking how to deal with standard forms such as OJEU notices and award notices in the transitional period given that the UK rules may well become law before the European Commission has made new versions of these forms available.

Here at Mills & Reeve LLP the procurement team is busy analysing the new legislation and getting ready for the changes; we will update readers of this blog with details of our forthcoming publications and training on the new Directives.