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

> Concession Contracts Regulations 2016 

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> Public Contracts Regulations 2015 

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Using Framework Agreements

In this section, we assume that the procurement is regulated by the 2015 Regulations.
What are the benefits of a framework over a simple contract?
A framework agreement will generally allow a purchaser more flexibility around the goods or services contracted for under the framework, both in terms of volume and also the detail of the relevant goods and services. A multi-supplier framework allows a contracting authority to select from a number of suppliers for its requirements, helping to ensure that each purchase represents best value.
Can my organisation use a framework that someone else set up?
This depends on whether your organisation, or your "class" of organisation, is clearly identified being a contracting authority who is permitted to use it by the call for competition. If you use a framework you are not entitled to use this could amount to an illegal "direct award" of a public contract and bring the risk of a claim for a declaration of ineffectiveness on the grounds that the contract should have been separately advertised.
What is the minimum and maximum number of suppliers we can appoint to a framework agreement?
It is possible to enter into a framework agreement with a single supplier. Multi-supplier frameworks are also possible; a multi-supplier framework set up under the Public Contracts Regulations 2015 needs only a minimum of two suppliers (where previously under the Public Contracts Regulations 2006 a minimum of three used to be required). There is no maximum number of suppliers in the procurement Regulations, but in practice frameworks with a very large number of suppliers become difficult to manage, as contracting authorities may have to approach each supplier appointed to the framework in relation to a proposed call-off.
We want to enter into a framework agreement that will operate over the next seven years – is this possible?
In general, no. The maximum permitted duration of a framework agreement is four years, other than in exceptional circumstances. Such circumstances would generally be around the level of investment required to participate in the framework (eg, in specialist equipment), meaning that suppliers could only recover that investment over a term longer than four years.
Our framework agreement has only six months left to run – can we call-off a two year specific contract?
Yes, provided that this is a typical call-off and the purpose is not to distort competition. Call-off contracts can continue after the relevant framework agreement has expired. The “new” EU Directive, the source of the 2015 Regulations, expressly states at Recital 62 that that, “while contracts based on a framework agreement are to be awarded before the end of the term of the framework agreement itself, the duration of the individual contracts based on a framework agreement does not need to coincide with the duration of that framework agreement, but might, as appropriate, be shorter or longer. In particular, it should be allowed to set the length of individual contracts based on a framework agreement taking account of factors such as the time needed for their performance, where maintenance of equipment with an expected useful life of more than four years is included or where extensive training of staff to perform the contract is needed”.

That said, there is a general prohibition on using framework agreements improperly or in a manner which distorts competition and this should be kept in mind when setting the term of a call-off contract.
Do we have to provide in the contract documents an exhaustive list of all contracting authorities who will potentially use the framework?
Yes. The contracting authorities should either be listed by name, or by reference to a list of the relevant authorities. It is quite common to refer to a web page containing a list of the relevant bodies. General descriptions of the relevant categories of authorities are not sufficient.
We want to set up a framework agreement but don't see how we can specify all the main terms of individual call-off contracts in advance – is this a problem?
When setting up a framework agreement, the contracting authority should include in the contract documents as many of the terms as possible which will apply to the call-off contracts so that the suppliers are clear as to their risks in relation to the call-off terms. However, if it is not possible to specify the terms which will apply to a call-off, those terms can be established at the time of call-off through use of a mini-competition. For more details about the requirements for running a mini-competition please see our note on Using Frameworks in the Document Toolkit tab above.
Once we have appointed a supplier to a framework, are we obliged to make sure that the supplier is awarded at least one call-off contract?
No. Suppliers are not usually guaranteed any work under a framework agreement, and it is helpful for a contracting authority to confirm this in the relevant tender documents. However, contracting authorities should ensure that suppliers on a framework are treated equally in relation to evaluation under any mini-competition process.
We are awarding a framework agreement – do we have to observe a standstill period before we enter into the framework agreement with the providers?
Yes. The standstill period applies when you set up a framework agreement. However, there is no mandatory standstill period for a call-off contract under a framework.
Once we enter into the framework agreement, do we need to publish a contract award notice?
Yes. The standard rules on award notices apply to setting up a framework agreement. However, there is no requirement to publish an OJEU award notice for a call-off contract under a framework. However, if the value of the call-off is over the relevant threshold, you will need to include information about the award on the Contracts Finder website in accordance with Regulation 108.
We entered into a three year framework last year with three providers. Then, another provider entered the market and we'd like to add this provider to the framework. Can we do this?
No, this would be a breach of the legislation. It may be appropriate to consider running a procurement exercise for a new framework arrangement now, and terminating the existing framework arrangement early. However, there would need to be an objective justification for this which did not simply relate to a single supplier.
We want to call-off a contract under the framework by holding a mini-competition. Can we use the exact same award criteria at this stage?
The legislation states that, following a mini-competition, the call-off contract must be awarded to the supplier that submits the best tender on the basis of the award criteria specified in the contract documents based on the framework agreement. The position in relation to proposed call-off award criteria should therefore be made clear in the contract documents made available to suppliers when the framework agreement was awarded. Subject to that, it is possible to vary the relative priorities of the call-off award criteria from those used at framework award. The proposed call-off criteria and the relevant weightings must be clearly stated in documents sent to suppliers in relation to the mini-competition.
Do we have to send a contract award notice to the OJEU every time we award a call-off contract?
No. There is no requirement to send an award notice to the OJEU for call-off contracts under a framework agreement, or indeed to send award notification letters to the bidders or to hold a standstill period. However, the remedy of "ineffectiveness" is potentially available to a challenger if call-offs are awarded without following the rules on mini-competitions as set out in the 2015 Regulations. There is however a "safe harbour" for contracting authorities. Provided that a contracting authority believes it has not infringed these rules, the ineffectiveness remedy will not available to a challenger if the contracting authority has voluntarily sent an appropriate form of award notification letter to all the bidders and voluntarily held a valid standstill period.

There is no need to publish an award notice in the OJEU for a call-off contract, but you will need to publish information on Contracts Finder about the award of a call-off contract (unless (1) its value is under £10k for central government or under £25k for non-central government and NHS Trusts, (2) you are a maintained school or an Academy or (3) the procurement was for clinical health services for the purposes of the NHS).
If a framework agreement is declared ineffective, does that mean the call-off contracts are also ineffective?
No, not necessarily. Call-off contracts entered into before any declaration of ineffectiveness will continue to be valid, unless they are the subject of separate proceedings.

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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.