State Aid? State What?!

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Which Regulations do you need?

To get up to speed with the various new procurement law regulations, please click below;

> Concession Contracts Regulations 2016 

> Utilities Contracts Regulations 2016

> Public Contracts Regulations 2015 

If you're not sure which regulations apply, click here.

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What information must our OJEU advertisement include?

Everything that is in the standard form OJEU notice – all fields are mandatory save where not applicable. If a contracting authority is publishing an OJEU notice on a merely voluntary basis (where the 2015 Regulations do not apply) it is common to include a statement in the OJEU notice that, while the contracting authority has decided to advertise on a voluntary basis, does not represent a commitment to follow one of the official procurement procedures. However, even where this statement is included, we would recommend that in practice the contracting authority aims to follow one of the official contract award procedures.

The EU has not yet published new standard forms for OJEU notices and until these are available contracting authorities will need to read the Cabinet Office guidance on how to adapt the "old" standard form OJEU notices.

Note that Regulation 53 requires the "procurement documents" to be made available electronically from the date of the OJEU advertisement, which should include now the internet link where the procurement documents are accessible.

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When do I need to place the advert?
This depends on which procedure you are using and when you hope to enter into the contract. Key procurement timescales are set out in our 2015 Regulations timescale tracker, setting out the minimum time periods from advertisement through to ITT stage and award.
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Do I need to publish the advert anywhere else other than the OJEU?
If the contract is over the relevant value threshold, Regulation 106 requires a contracting authority to publish the details set out in that regulation on the Contracts Finder website within 24 hours of the time it becomes entitled to publish at national level. However, Regulation 106 will not apply to a procurement of clinical health services for the purposes of the NHS, nor where the contracting authority is a maintained school or Academy.

Bear in mind too that publicly advertising an under-threshold contract will generally trigger the Regulation 110 requirement to also include information about the contract opportunity on Contracts Finder. (However, if the contract is very low value (under £10k for central government or under £25k for non-central government and NHS Trusts) then Regulation 110 can be disregarded. Further, Regulation 110 will not apply to a procurement of clinical health services for the purposes of the NHS, nor where the contracting authority is a maintained school or Academy).
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Contract value in the OJEU notice for a framework agreement
This should be your best estimate of the likely total spend under the framework.
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Can I amend an OJEU notice once it is published?
Yes, but where any material changes are made the dates for responding to the OJEU notice should be extended to allow the relevant minimum timeframe following the date on which the amendments are submitted to the OJEU. An official form must be used to notify the OJEU of any amendments.
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Do we have to advertise contracts under the relevant threshold?
The Regulations themselves do not require advertisement under-threshold contracts. However EU guidance states that the general principles of equality of treatment, non-discrimination and transparency require contracting authorities to consider the likely cross-border interest in the contract and ensure that it is opened up to an appropriate degree of advertising/competition accordingly. An OJEU notice will be deemed to meet this requirement, but appropriate forms of more targeted advertising (e.g., in trade journals) may also be appropriate. Bear in mind that publicly advertising an under-threshold contract will generally trigger the Regulation 110 requirement to also include information about the contract opportunity onContracts Finder. (However, if the contract is very low value (under £10k for central government or under £25k for non-central government and NHS Trusts) then Regulation 110 can be disregarded. Further, Regulation 110 will not apply to a procurement of clinical health services for the purposes of the NHS, nor where the contracting authority is a maintained school or Academy).
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What is a PIN?
A PIN, or Prior Information Notice, is a notice published in the OJEU which sets out a contracting authority's purchasing intentions. It does not oblige the contracting authority to proceed with a procurement process, but informs the market that they should expect a procurement to be commenced within the next 12 months. Publishing a PIN is not mandatory unless the contracting authority is seeking to use a PIN to reduce procurement timescales.
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What is the point of publishing a Prior Information Notice (PIN)?
Firstly, where a valid PIN has been published at least 35 days and not more than 12 months in advance of a contract notice, the contracting authority may shorten the timescales under the open, restricted and competitive with negotiation procedures. The shortest possible timescale available (without having to justify using an accelerated procedure) can be achieved by having a PIN in place, and ensuring that the OJEU notice and contract documents are in electronic form.

Secondly, sub-central contracting authorities (i.e. those not expressly listed inSchedule 1 to the 2015 Regulations) may, when using the restricted or competitive with negotiation procedures, use the PIN as a call for competition in itself instead of an OJEU advertisement, provided that the conditions at Regulation 48(5) are met.
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Do we need to publish a PIN?
It is no longer a requirement of the legislation that contracting authorities always have to publish PINs where their requirements are expected to exceed the relevant thresholds. PINs only need to be used when a contracting authority wishes to take advantage of the shorter timescales that the timely publication of a detailed PIN will allow. The impact of a PIN on key procurement timescales is set out in our timescale tracker.

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New public procurement e-learning tools

We have teamed up with BuiltIntelligence* to develop an e-learning tool and procurement webinar. 

> Procurement e-learning: Remedies Directive
Designed to help you recognise key risk areas in the procurement life-cycle.

> New Public Contracts Regulations 2015 webinar
Are you struggling to get a handle on the Public Contracts Regulations 2015? If so, procurement experts Greg Gibson and Helen Prandy will guide you through the key changes in the new Regulations and provide practical answers to some of the tricky issues raised. The webinar is priced at £49 + VAT.

* Mills & Reeve LLP receives a share of the course fees from BuiltIntelligence to reflect our contribution to the course content.