Public Contracts Regulations 2015 published

Emily Heard, Bevan Brittan

The new Public Contracts Regulations 2015 (SI 2015/102) (“the Regulations”) were published and laid before Parliament on 5 February 2015. To download the Regulations from the Government’s Legislation website please click here.

Most of the Regulations will come into force in England, Wales and Northern Ireland on 26 February 2015 (Regulation 1(2)). There are a few exceptions, where the Regulations will come into force at a later date. The key exceptions are:

Electronic communications and submission of tenders

  • 18 October 2018 is the date from which most contracting authorities must conduct procurement using electronic means, including e-submission of tenders (Reg 1(3)(a) & (c)). Contracting authorities can opt to use electronic methods earlier than this date and if they do so they can reduce the timescales for receipt of tenders in open and restricted procedures by 5 days.
  • 18 April 2017 is the date from which central purchasing bodies will have to conduct procurement using electronic means, including e-submission of tenders (Reg.1(3)(b) and 1(4)).

European Single Procurement Document and e-certis

  • 18 April 2017 is the date from which contracting authorities must use an electronic format for the European Singe Procurement Document (ESPD). This is a document which economic operators can submit in substitution for certain selection stage documents/certificates.
  • From 18 October 2018 contracting authorities can require certain documents to use the EU wide e-certis system (Reg.1(5)).

Procurement of health services for the purposes of the NHS within the meaning and scope of the NHS (Procurement, Patient Choice and Competition) (No.2) Regulations

  • 18 April 2016: the Regulations will not apply to contract award procedures for the procurement of health services for the purposes of the NHS which have started before this date.

National provisions concerning advertising on contracts finder:

Provisions requiring advertising of both below and above threshold contracts on Contracts Finder (in addition to publication in the Official Journal of the European Union) and publication of contract award information on Contracts Finder will apply from 1 April 2015 (Reg 1(6)(b)).

  • Contracting authorities which perform their functions on behalf of the Crown must comply with these provisions from 26 February 2015 (Reg 1(6)(a)).

Contract award procedures started before 26 February 2015 (Reg 118)

Where a contract award procedure starts before 26 February 2015 the Public Contracts Regulations 2006 will continue to apply. Regulation 118 defines what is meant by the start of a contract award procedure and also covers the issue of the award of contracts under framework agreements and dynamic purchasing systems.

Wales, Northern Ireland and Scotland

The “national” provisions in Part 4 of the Regulations do not apply to a contracting authority in Northern Ireland and Wales whose functions are wholly or mainly devolved functions. The “national” provisions primarily concern qualitative selection, abolition of PQQs and advertising requirements for low value contracts, and payment of invoices (Reg 1(8)).

The Regulations do not apply in Scotland, except in relation to provisions concerning the amendment of the Defence and Security Public Contracts Regulations 2011 (Reg 1(7)).

Structure and content of the Regulations

The Regulations are divided into five parts.

Part 1, Regulations 1 and 2, set out information on commencement and application, as well as the definitions

Part 2, Regulations 3 to 84, implement Directive 2014/24/EU. The drafters have used a “copy out” approach which means that the content has been copied from the Directive with minimal changes.

Part 3, Regulations 85 to 104, set out the provisions concerning Remedies. There are very minimal changes to the provisions in the 2006 Regulations on remedies.

Part 4, Regulations 105 to 114, set out “national” provisions which are driven primarily by the recommendations of Lord Young concerning low value procurements, the pre-qualification process, payment of invoices and validity of contracts.

Part 5, Regulations 115 to 122, deal with transitional arrangements, temporary exemptions and other general issues.

Comment

Most of the provisions are very similar to those in the draft Regulations which were the subject of consultation in September/October 2014 – see our Byte size procurement updates 1 to 14. The most obvious differences between the draft Regulations and this final version are in the “national” provisions in Articles 105 to 114. We will be issuing further Bytes with comments on these and other provisions in the near future.

Regulations applying to Utilities are expected later in the year and we expect that the new Regulations on Concessions will be implemented by April 2016.