Key questions and answers
Please note that although the information in our our 5 in 25 webinars and FAQs was correct at the date of recording, this is an area of law subject to development and change.
Do check if in doubt as to the latest position - you can email [email protected].
Please note that the responses provided represent the general views of the public procurement team at Mills & Reeve, however they should not be relied on or treated as a substitute for specific advice relevant to a particular scenario/matter. If you require specific legal advice, our procurement team would be happy to discuss this further.
FAQs
Yes, Regulation 72 applies to frameworks (see the CCS Guidance on amendments to contracts). A Voluntary ex ante Transparency Notice may be appropriate to mitigate against risk of challenge – but specific legal advice should be taken ahead of publication.
Yes, we take the view that Regulation 72 applies to Light Touch Regime contracts. A Voluntary ex ante Transparency Notice may be appropriate to mitigate against risk of challenge - but specific legal advice should be taken ahead of publication.
Please see the webinar recording, which deals with this question in full.
We would refer you to the webinar recording in respect of why we take the view it would likely be deemed non-compliant with the PCR to create a ‘framework within a framework’, as such comments would equally apply to DPSs.
We have assumed that your question concerns a re-procurement exercise, where there may be transition costs for a new supplier assuming the role of the previous supplier.
In this scenario, incumbent suppliers are often already well placed to continue operating the contract in the same manner as the previous contract and to that end, there would be no significant transition/implementation exercise. In turn, this often means that the Authority is not required to fund any costs relating to transition/implementation. In our view, this would constitute a natural advantage which the incumbent enjoys, and is not unlawful per se.
If the Authority does, however, wish to ensure that other suppliers are not necessarily immediately discounted due to a potential significant disparity in costs between the incumbent and other suppliers, the Authority may wish to ensure that any weighting attributed to transition/implementation costs within its evaluation criteria is relatively low. In our view, it would be unfair (and therefore potentially unlawful) to artificially ‘inflate’ the incumbent’s price, in an attempt to ‘level the playing field’, as this would likely have the opposite effect and would result in a scenario where the incumbent may be minded to challenge the Authority on the basis of a lack of equal treatment.
No – this time period should however, be proportionate in consideration of the response requirements (see Regulation 33(11)(b)). There is, however, a minimum of 10 and maximum of 15 days mandated for responses to a DPS.
The scope of this session was targeted at the English regime only.
This definition is in our view probably too broad to be compliant.
Ideally - but the key obligation is whether they are mentioned in the Contract Notice. See Regulation 33(5) and the CCS Guidance on Frameworks which both make this clear.
There is no guidance on this but is a really tricky area for the reasons we discussed during the webinar. If you are thinking of going down this route it is worth getting legal advice. The key issue is whether a contracting authority is 'standing behind' the framework (if this was not the case, a call-off contract awarded by a contracting authority calling off from such a framework, is likely to constitute an illegal direct award). Ultimately, if an economic operator did wish to challenge the conduct of the framework competition and seek a remedy alleging a breach of the PCR, such remedy can only be sought against a ‘contracting authority’, meaning that it is the authority that would be the subject of a challenge, not the private sector organisation acting as agent for the authority.
It is not lawful to make substantial amendments (see Regulation 33(6)). The CCS guidance clarifies that Regulation 72 on modifications to contracts applies to framework agreements as well as to contracts.
We await the detail, but quite possibly, yes.
This could be done in exceptional cases duly justified, in particular by the subject-matter of the agreement (see Regulation 33(3)). You would need to explain in the Contract Notice the reasons why this is longer than four years. Recital 62 to the EU Directive on public procurement gives an example of where this could be justified: “where economic operators need to dispose of equipment the amortisation period of which is longer than four years”.
This would depend on the length of the proposed call-off - does this align with the terms of previous call-offs, or does it instead represent a way to try and avoid having to run a new procurement?
The call-off needs to be awarded prior to the end of the framework because, otherwise, the framework will no longer exist at the date you enter into the contract and therefore, it would likely constitute an illegal direct award.
Please see response to the question above.
We presume this refers to a ranking order used as a call-off mechanism to facilitate direct awards, i.e. the highest ranking bidder is provided with a right of first refusal in respect of all call-off contracts awarded under the framework. If so, this seems compliant, provided that it is transparently explained in the procurement documents.
In our view, this is likely to be the case, as asking the supplier to submit alternative may amount to changing the transparent/objective process which is set out in the framework.
Yes, it can.
“Flexible” frameworks such as this are not defined in the PCR 2015 nor in guidance. Therefore, the risk will depend on what flexibility is envisaged. The light touch regime does afford authorities more flexibility but subject always to the obligation to treat bidders equally and act transparently.
We think this could amount to a “framework within a framework” and so care would need to be taken here.
No – the four-year maximum length (save for exceptional circumstances) applies to frameworks. There is no limit/cap on term for DPS.
We still would consider this not to be compliant as it still would not meet definition of a framework as defined in Regulation 33.
Further, it is unlikely that the mere fact of including this intended approach in the Contract Notice will commence the limitation period for a challenge. A recent procurement case (Police Digital Service) raises questions about when the 30-day limitation period will expire, where an intention not to follow the PCR is set out in a Contract Notice, which is likely to be analogous to this scenario. To that end, it is doubtful that in this case the 30-day limitation period would be said to have started on the date of the Contract Notice, and so have expired prior to the award of the framework (as the authority might have hoped).
There is no mandatory obligation to hold a standstill period for these call-offs and therefore no grounds for a challenge. However, it can be helpful to run a standstill period even here, as doing so may effectively remove the remedy of a declaration of ineffectiveness if a challenge arose and the authority had correctly complied with Regulation 86.
No - it is not permitted - see Regulation 34.
We intend to address issues concerning selection criteria in a later webinar. Details of the intended date for this webinar will be issued shortly.
We have assumed this question refers to the publication of contract award notices where a call-off contract has been awarded under a framework. There is no obligation to publish a contract award notice in Find a Tender in respect of call-off contracts under a framework. However, you may need to publish a contract award notice in Contracts Finder (see Regulation 108(1)(b)).
No.
This is a complex area and depends on how you define a ‘pilot project’. Depending on value, the pilot itself could of course amount to a regulated public contract which needs to comply with the PCR 2015. Even if not, care will have to be taken to ensure that no unfair advantage is conferred on a supplier via their participation in the pilot in a subsequent procurement process as this could be construed as a potential conflict of interest and the authority will therefore need to give some consideration in respect of how it may be able to ‘level the playing field’ for suppliers who were not involved in the pilot.
See Regulation 50(5) which states that for DPS you must submit contract award notices within 30 days or alternatively you may group these on a quarterly basis (publish within 30 days of the end of each quarter). These award notices will also have to be published on Contracts Finder pursuant to Regulation 108(1).
Please see our response to the question above about authorities setting up "flexible" frameworks under the current light touch regime..
We have reviewed PPN 10/21 and note that paragraph 10 appears to imply that these de minimis thresholds are indeed VAT inclusive. We suspect that this may be an error and have contacted the CCS helpline for clarification. For now though, we advise it is best to work on basis that these thresholds are VAT inclusive until this point is clarified.
Regulation 1 makes it clear that the PCR 2015 do not apply to the devolved nations.
If the services you are procuring are within the scope described under G-Cloud, we do not see an issue here.
Yes – see Regulations 34(25) and 34(26) – you can remove a Supplier if they no longer meet selection criteria (and therefore an exclusion ground applies).
In respect of scoring supplier performance, we assume that this question refers to scoring supplier performance during the lifetime of the DPS and sharing such data with other suppliers within the same category on the DPS. Contractually, it may be possible to remove a supplier from a DPS due to issues of poor performance, however we would advise that this process is clearly defined within the DPS contract documents. Further, prior to removing such supplier from the DPS, we would recommend that the supplier is provided with the opportunity to present their response to any allegation of poor performance to ascertain whether the customer(s) itself had contributed to the poor performance.
Finally, in respect of sharing this data with other suppliers within the relevant category of the DPS, we suspect that this could be problematic from the perspective the supplier concerned, and the supplier may seek to prohibit the publication of this information. Indeed, the supplier may be successful in seeking legal redress, if the authority managing the DPS/removing the supplier from the DPS, is not able to produce clear evidence that the supplier had indeed performed poorly. The supplier may also allege that it has suffered, or risks suffering loss as a result of such information being published (e.g. loss of future public contracts etc.).
The Authority calling off has the responsibility to publish contract award notices (where they are required).