Procurement: Amendments to public procurement Regulations published

The Statutory Instrument amending the public procurement regulations has been made and published. Most of the provisions will take effect at the end of the Brexit implementation period: 11pm on 31 December 2020 (IP completion day).

The Public Procurement (Amendment etc.)(EU Exit) Regulations 2020 SI 1319 (PP Amendment Regulations 2020) set out amendments to the: Public Contracts Regulations 2015 (PCR), Concession Contracts Regulations 2016 and Utilities Contracts Regulations 2016. It also amends other legislation requiring incidental changes, including the Public Services (Social Value) Act 2012. The focus of this note is on the PCR.

Most of the provisions in the public procurement regulations remain the same. More significant changes may lie ahead but, for the time being, the aim is to maintain a “steady state” so far as possible.

We would expect to see detailed guidance issued by Cabinet Office on the PP Amendment Regulations 2020.  In the meantime, we thought it might be helpful to highlight three points of immediate practical relevance:

1. End of publication of notices in the OJEU – and start of publication of notices on UK’s Find a Tender service

Contract notices and other notices such as prior information notices, contract award notices, contract modification notices as well as voluntary transparency (VEAT) notices will no longer be dispatched to and published in the Official Journal of the European Union (OJEU). Instead, whenever you would have published a notice in the OJEU, you will now need to publish a very similarly worded notice using the UK’s new e-notification service “Find a Tender”. The same financial thresholds and timescales apply to publication of notices as before.

Existing requirements to publish on Contracts Finder, Sell2Wales or e-TendersNI continue to apply.

On 23 November 2020, Cabinet Office published PPN 08/20 Introduction of Find a Tender service (FTS) which includes FAQs and a flowchart illustrating where to publish  procurement notices after the end of the Transition Period (IP completion day). A link to PPN 08/20 is included at the end of this article.

2. Amendments will not apply to procurements already under way

The PP Amendment Regulations 2020 include provisions (saving provisions) covering the situation where procurements are already under way, but not yet finalised, on IP completion day.

Put simply, Part 2 of the Schedule to the PP Amendment Regulations provides at section 3, that where a procurement procedure has been launched but not finalised at IP completion day the PCR will apply as if unamended by the PP Amendment Regulations 2020 or by subsequent amendments to the PCR.

The terms “launched”, “finalised” and “procedure” are explained for the purposes of the saving provisions. In summary:

• A procedure is “launched” when a call for competition[1] or any other invitation to submit applications has been made in accordance with the PCR. Where the PCR do not require such a call or invitation, a procedure is “launched” when the contracting authority contacts economic operators in relation to a specific procedure.
• A procedure is “finalised” when a contract award notice is published or, where a contract award notice is not required, upon conclusion of the relevant contract. When an authority decides not to award the contract the procedure is “finalised” when it informs the tenderers or those otherwise entitled to participate of the reasons why the contract was not awarded.
• The saving provisions refer to a “procedure” as including a procedure using a dynamic purchasing system and also where a call for competition takes the form of a prior information notice.

3. Award of contracts/call-offs under existing framework agreements are not affected by the amending provisions

Part 2 of the Schedule provides, at section 4, that where:

• a framework agreement is concluded and has not expired or terminated before IP completion day; or
• a procedure for setting up a framework agreement was launched but not finalised before IP completion day

The PCR will apply to the award of contracts under that framework agreement as if unamended by the PP Amendment Regulations 2020 or by subsequent amendments to the PCR.

Resources

• PP Amendment Regulations 2020 and Explanatory 
• PPN 08/20 Introduction of Find a Tender service (FTS)

We will keep you posted on further developments.

[1] PCR 2 defines a call for competition as ” a call for competition made in a manner required or permitted by regulation 26(8) to (9) or, where relevant, one of the notices referred to in regulation 75(1) or a contest notice.” This includes contract notices and  prior information notices.