Teddy bears and the UK's draft new EU Public Procurement Regulations

Those of you who know your nursery rhymes will know that if you go down to the woods today you'll be sure of a big surprise. Well the same might be said of anyone taking a peek at the UK's draft regulations for implementing the new EU Public Procurement Directive; which were revealed and issued for consultation by the Cabinet Office on Friday 19 September (and which can be found on the gov.uk website and also via this link: Draft new UK Public Procurement Regulations.

But the big surprise is by no means a teddy bear's picnic. Instead as well as new regulations to implement the new EU Public Procurement Directive we also have new regulations governing the procurement of below threshold contracts. We are told these follow Lord Young's recommendations and the subsequent consultation on making public sector procurement more accessible to SMEs. If implemented in their current form the below threshold regulations (which will apply to contracts over £10,000 for Central Government and £25,000 for other contracting authorities) will impose two key requirements:

  • if the opportunity is to be advertised at all - this must include an advertisement on Contracts Finder; and
  • a ban on the use of a PQQ or a separate pre-qualification stage.

And the Government's known dislike of pre-qualification doesn't stop there. Even when procuring above threshold contracts contracting authorities will be required to have regard to any Cabinet Office guidance on qualitative selection; which may include guidance on the use of PQQs (including avoiding burdensome excessive or disproportionate questions) and their assessment.

Other headline points on the new draft regulations are:

  • if the title of the draft regulations is anything to go by (i.e. Public Contracts Regulations 2015) they will not be brought in to force in this calendar year;
  • the new light touch regime is as anticipated very light touch;
  • there's some additional breathing space for NHS commissioners in the form of a delayed effective date. The new regulations will not apply to the procurement of contracts within the scope of the NHS (Procurement Patient Choice and Competition) (No 2) Regulations 2013 until the later date of 18 April 2016; and
  • consultation on and implementation of the other two new Directives (relating to utilities and concessions) will also come later; once the implementation of the public contracts regime is out of the way.

Anyone wishing to respond to the Cabinet Office consultation has a relatively short period in which to do so as the consultation ends on 17 October 2014.

Watch this space for further bulletins updates and events as we digest the details of the draft regulations and the consultation and proposals for implementation progress.

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