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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.

Working with the Contract

In these questions and answers, we assume that the procurement is regulated by the 2015 Regulations.
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We entered into the contract last week – do we need to publish an award notice in the OJEU?
You should publish an award notice for any contract which is entered into as a result of a contract award procedure (open; restricted; competitive with negotiation; competitive dialogue; innovation partnership) for which an OJEU notice was published. Each OJEU notice should have a corresponding award notice. In addition, an award notice should be published for the award of Light Touch Regime contracts that are over the relevant threshold.
Maximize
Do we need to publish the contract anywhere else?
If the value of the contract is over £10,000 (central government) or £25,000 (sub-central government and NHS Trusts) then you must publish contract award information on Contracts Finder, in accordance with Regulations 108 (for over threshold) and 110 (for under threshold). Note that this requirement does not apply to the procurement of clinical health services, nor if the contracting authority is an Academy or a maintained school. It will also not apply if the contract is very low in value (under £10k for central government or under £25k for non-central government and NHS Trusts).
Maximize
It was an under-threshold contract and we didn't choose to advertise it on Contracts Finder but simply sought three quotes. Do we still need to publish contract award details on Contracts Finder?
Yes, (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).
Maximize
We called the contract off from a framework agreement. We don't need to publish details, do we?
There is no need to publish an award notice in the OJEU, 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).
Maximize
Can we renew an existing contract on exactly the same terms without having to run the procurement process all over again?
In general, no. If the original contract was subject to a contract award procedure under , the renewal should also be subject to a contract award procedure. Just because a certain supplier won the contract last time, does not mean they will succeed again. However, if the contract as originally awarded provides for a possible extension of the contract term (and this provision is consistent with the original procurement documents) this would allow for the contract to continue to run during such an extension without a further procurement. See below.
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We want to vary the terms of our contract with a supplier. Can we do this without having to run the procurement process all over again?
It depends on whether this is a "substantial modification" or not. Substantial modifications (as defined in the 2015 Regulations) are not permitted without running a new procurement process. See below.
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We want to extend our contract with a supplier so that it runs on the same terms for an extra two years. Can we do this without having to run the procurement process all over again?
It depends on whether this is a "substantial modification" or not. Substantial modifications (as defined in the 2015 Regulations) are not permitted without running a new procurement process. See below. Note that there are specific provisions about the maximum term of framework agreements (which in general should not exceed four years).
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We need to extend the contract because the current supplier is the only one that can deliver the service. Is this permissible?
It depends on whether this is a "substantial modification" or not. Substantial modifications (as defined in the 2015 Regulations) are not permitted without running a new procurement process. See below.
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What amounts to a substantial modification under Regulation 72?
Regulation 72 says that you may not make a "substantial modification" without running a new procurement process. It then lists out several types of modification which are permitted, as follows. Anything outside of these "safe harbours" is likely to be a substantial modification requiring a new procurement.

Permitted modifications:
  • Where the change is set out clearly, precisely and unequivocally in the original contract and does not change its overall nature;
  • Where the change was not set out in the original contract,
    • but nonetheless it is not “substantial” (as defined at Regulation 72(8)); or
    • the (cumulative) change in value is under 10% (services & supplies) or under 15% (works) and is also under threshold; or
    • the change is needed due to unforeseen circumstances and it doesn’t change overall nature of contract and price increase is < 50% (NB an OJEU “contract modification notice” must be published);
    • additional works, services or supplies are necessary and a change in contractor: can’t be made for economic or technical reasons e.g. interoperability with existing kit, AND would cause significant inconvenience or duplication of costs (NB an OJEU “contract modification notice” must be published);
    • the change is the replacement of contractor following corporate restructuring, insolvency, merger etc. and new contractor still meets selection criteria and there is no other substantial modification.
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I have heard the 2015 Regulations require us to redraft our standard termination clauses. Is this right?
Regulation 73 introduces new rights for a contracting authority to terminate a contract if there has been an "illegal" substantial modification to the contract or if it turns out that the contractor should not have been awarded the contract as it should have been excluded under the exclusion criteria or where the contractor has been found to have seriously infringed its obligations under EU law. It is not strictly necessary to amend standard termination clauses to include this right, as the effect of Regulation 73 is to imply them into any contract which is silent on the subject. However our recommendation is that it is best to expressly address these termination events and provide legal certainty by detailing, for example, the consequences of a termination on one of those grounds.
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Do we have to keep records about the procurement?
Yes. Regulation 84 requires you to draw up a report contain the information it specifies at Regulation 84(1). Have a look at out Regulation 84 Report Checklist for details of content requirements. In addition Regulation 84(7) to (9) states you must document the progress of all procurement procedures, keeping sufficient documentation to justify decisions taken in all stages of the procurement, including communications with bidders, drafting of the procurement documentation, negotiations with bidders, selection and award of the contract. This documentation must be kept for at least 3 years from the date the contract is awarded.

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The Procurement Portal aims to provide a "one stop shop" for procurement law queries and advice.

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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.