We've waited for ages, now three come along at once!

Not buses of course, but procurement regulations. Last week saw the publication of the Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016 and the unwieldy sounding Public Procurement (Amendments, Repeals and Revocations) Regulations 2016.

All of these come into force on 18 April 2016, in relation to procurements commenced on or after that date. 

Utilities Contracts Regulations 2016

These will replace the Utilities Contracts Regulations 2006 and implement the 2014 Utilities Directive. We are creating new content for the Portal on these regulations and will post details when this is available. We have done a comparison of the final version against the last draft and there do not appear to have been material changes made in the interim which is reassuring for those who read the last draft.

Concession Contracts Regulations 2016

These are new regulations to implement the 2014 Concessions Directive and will regulate public works and public services concession contracts valued at over the threshold of £4,104,394.

The regulations carefully define the characteristics and features of a concession contract. In-scope concessions will need to be advertised in the OJEU and follow a procurement procedure that meets certain minimum standards around transparency equality of treatment and non-discrimination. Duration of concession contracts must be limited to 5 years (unless it can be demonstrated that a longer term is needed for the concessionaire to recoup its investment).

We have done a comparison of the final version against the last draft available and there are no significant changes apart from in the section dealing with Remedies. This has been brought into line with the wording in the Utilities Contracts Regulations 2016 and will allow a tenderer to claim its costs of preparing the tender and participating in the process if it can show that it would have had a real chance of winning the concession contract but for a substantiated breach by a Utility (note not by a Contracting Authority.)

We are creating new content for the Portal on these regulations and will post details when this is available.

The Public Procurement (Amendments Repeals and Revocations) Regulations 2016

These regulations make amendments to several pieces of legislation but particularly to the Public Contracts Regulations 2015 (PCR 2015). From 18 April 2016 you will need to refer to an updated copy of the PCR 2015 that reflects the changes made.

The following are some of the more interesting amendments made to the PCR 2015:

  • Regulation 57 (Exclusion Criteria) is amended so that an offence under section 2 or 4 of the Modern Slavery Act 2015 (i.e. human trafficking) becomes a mandatory exclusion offence. We understand from the Crown Commercial Service that it intends release a new standard form PQQ plus guidance that will include this new ground (and that it will also include amendments to reflect the fact that the European Single Procurement Document is now in force; 
  • Duration of Exclusions for tax offences - Regulation 57(11) used to impose a 5-year exclusion period where there was a mandatory exclusion for an offence of non-payment of taxes and a 3 year period of exclusion where discretion to exclude was exercised in relation to a lower level breach. Although there remains an obligation to exclude where this kind of offence has been committed and discretion to exclude for lower level breaches the '5 year/3 year' period appears to have been removed for these particular exclusion grounds;
  • Permitted modifications - Regulation 72(1)(b) is amended so that to fall within this safe harbour you need to demonstrate that additional works/services/supplies are required the that the value change is less than 50% and that the contractor cannot be changed because (1) there are economic and technical reasons (e.g. interoperability with existing equipment/services) AND (2) changing the contractor would cause significant inconvenience or substantial duplication of costs. 
  • Permitted modifications (2) - we already have had the Edenred case and guidance from the CCS which tells us that we must apply Regulation 72 to modifications proposed after 26 February 2015 even where the original contract is governed by the 2006 Regulations and that the Regulation 73(3) termination rights are to be implied in this situation as well. Regulation 118(5) of the PCR 2015 will now states this expressly which provides some useful clarity on the position.

An area of interest to Commissioners and Providers in the health sector is around the coming into force on 18 April 2016 of the PCR 2015?s Light Touch Regime for the procurement of health services by CCGs and NHS England.

This area is already regulated by the NHS Procurement Patient Choice and Competition)(No.2) Regulations 2013 (the 'NHS Regs 2013') and there is a certain dissonance between the two regimes. We did wonder whether these amendment regulations might amend either the PCR 2015 or the NHS Regs 2013 to give us a clearer steer on how the two are intended to gel together. However no such amendments feature and it may be that the government intends to leave it to practitioners to work out how to apply the law. 

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