6 months in…….are we grasping the new regs?

This article first appeared in the PPC Newsletter

Overview

The Public Procurement Regulations 2015 (PPR2015) came into force on 26th February 2015.  This means that any public procurement activity commencing after that date must comply with PPR2015.  There are a variety of changes which affect the way in which Public Procurement will be undertaken, many of which are designed to simplify the process and of course, take into account Lord Young Reforms to make public procurement more accessible to small and medium sized enterprises (SMEs).

This article sets out some of the critical changes that may affect the way you undertake your procurement process and flows from pre-procurement activities through to tender evaluation.

In the next newsletter, a secondary article will provide further detail on contract award stage and some of the critical issues relating to ongoing contract management activities – particularly around some of the ongoing reporting requirements.

Procurement strategy stage

In the new regulations, pre-market engagement is actively encouraged under Regulation 40.  There is even an explicit reference to  ‘discussions with suppliers and expert bodies’ prior to starting a procurement procedure both to inform suppliers and to allow the authority to seek advice in planning an conduct of the procurement procedure.  There is a clear piece of advice relating to steps that must be taken following participation in pre-market engagement to prevent competition distortion:-

“Where a candidate or tenderer, or an undertaking related to a candidate or tenderer — (a) has advised the contracting authority, whether in the context of regulation 40 or not, or (b) has otherwise been involved in the preparation of the procurement procedure, the contracting authority shall take appropriate measures to ensure that competition is not distorted by the participation of that candidate or tenderer”

This links really nicely to the Regulation relating to Conflict of Interest (Regulation 24) which, in short describes how measures need to be taken to effectively:-

  • Prevent
  • Identify
  • Remedy

conflicts of interest arising during procurement activities.  It is therefore recommended that you implements a conflict register/checking system and put appropriate mitigation strategies in place, something that is particularly important when embracing the ability to engage with the market before starting a procurement!  The simple fact that an unresolvable conflict of interest forms grounds for discretionary exclusion at PQQ stage probably highlights why this should be dealt with as early as possible in any procurement.

At procurement strategy stage, the critical aspects that should be covered off are:-

Aspect What needs to be reviewed/decided
Division into Lots
  • Where it is decided not to divide contracts into Lots, the reason(s) must be described within the contract notice, or in its report on each contract
  • There is flexibility to award more than one lot for a contract to the same supplier
  • The number of lots a supplier can apply for may be limited provided that the maximum number is stated in the contract notice
  • Procurement documentation needs to set out the objective criteria that will be used to allocate lots
Procedure Choice Additional procedures are now available for use.  The available procedures are:-

  • Open
  • Restricted
  • Competitive Procedure with negotiation
  • Competitive Dialogue
  • Innovation Partnerships

Aside from the ‘new’ procedures, there are also time changes and guidance notes relating to appropriateness of certain procedures.  For example, for ‘competitive procedure with negotiation’ as tempting as it sounds to be able to use, there is some guidance around when it is appropriate to do so:-

  • Where needs cannot be met without adaptation of readily available solutions
  • Where the contract includes design or innovative solutions
  • Where the requirement is complex in nature, in its legal and financial make-up or because of its risks
  • Where the technical specifications cannot be established with sufficient precision
  • In the case of unacceptable/irregular tenders

It is therefore really important to know why you are choosing a particular procurement route and time should be taken to develop this as part of your procurement strategy.

E-Procurement
  • Regulation 53 outlines that submission of tenders and requests to participate electronically is not mandated until October 2018.  However, from 26th February 2015 it was stated that:-
  • OJEU notification must be electronic
  • Procurement documents must be available to suppliers from date of notice publication
  • If the documentation is not available five days must be added to the minimum response times for suppliers set out in the directive (except in the case of ‘substantiated’ urgency)

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