What have we learned from the impacts of the new EU procurement directive? this presentation focuses on Part B service and explore the changes to procedures in moving from price to cost. Presented by: Debbie Metcalfe (Achilles Group Ltd) at PfH Live 2014

1. Debbie Metcalfe LLM MSc MCIPS
25th June, 2014

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Rationale behind new Directives
 Public procurement seen as playing a key role in the EU 2020
strategy, the directives must support this and therefore must be,
 “Revised and modernised in order to increase the efficiency of
public spending, facilitating in particular the participation of
small and medium-sized enterprises in public procurement
and to enable procurers to make better use of public
procurement in support of common societal goals.”
 New directives to provide for “simplification” and “flexibilsation”
 Incorporate case law
 New Public Sector Directive 2014/24/EU (replacing 2004/18/EC)
 New Utilities Sector Directive 2014/25/EU (replacing 2004/17/EC)
 New Concessions Directive 2014/23/EU

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Timetable
 3 New Directives
 Public sector – 2014/24/EU (replacing 2004/18/EC)
 Utilities sector – 2014/25/EU (replacing 2004/17/EC)
 Concessions for both sectors – 2014/23/EU
 Publication in OJEU 28th March 2014
 In force from 17th April 2014
 Have to be implemented into Member States domestic law within 24
months
 Cabinet Office aiming for quick implementation – realistically
2015?
 Scottish Government expects to implement in 2015

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Key areas of change
 Understanding the impact of the new EU Procurement Directive is
imperative. Being prepared to adapt procurement strategies to
match the new procedures and processes will save contracting
authorities a lot of time and resource in the future.
 We will now look at some of the main changes -
 Abolition of Part A and B Services
 Changes to Procedures
 New Innovation Partnership Procedure
 Changes to Award Criteria

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Light Regime Art 74-76
 Abolition of Part A / B categorisation
 Light regime for services (listed in Annex XIV)
 Eg Social & health, hotel and restaurant, legal services, prison,
security, rescue, cultural, educational.
 CPV codes given in Annex are definitive.
 Specific thresholds for these categories
 €750,000 under Public Sector Directive

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Light Regime Art 74-76
 Advertise in OJEU – contract notice
 Publish contract award notices
 Follow national rules provided by member states to ensure
transparency and equal treatment – have to wait for UK
implementation to know what is required.
 National rules could include issues of
 Quality
 Continuity
 Accessibility
 Affordability
 Availability
 Comprehensiveness of service

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Key changes – public sector procedures
 New competitive procedure with negotiation Art. 29
 Replaces competitive negotiated procedure
 Increased Flexibility to Negotiate
 Effectively for anything not off-the-shelf and failed open / restricted
procedure Art. 26
 Same justification for Competitive Dialogue
 However some tightening up at final tender stage, now required
BAFO mandatory – no negotiation on final tenders

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Role of Competitive Dialogue Art 30
 Does Competitive Dialogue have any advantages?
 Public Sector Competitive procedure with negotiation requires ‘final’
tenders
 Negotiations now expressly permitted with preferred bidder to clarify,
specify and ‘optimise’ (cannot change essential aspects)
 More scope for post tender negotiations in Competitive
Dialogue?

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New Innovation Partnerships Procedure Art 31
 New Procedure - Innovation Partnership
 Development of innovative product, service or works not
available on market
 Structured partnership
 One or more partners
 Successive stages following the sequence of steps in the research
and innovation process possibly up to the manufacturing of the
supply or provision of services
 The ability to then procure the outcomes of the research in the same
Procedure
 Greater Buyer – Supplier collaboration, long term partnerships
between Contracting body and suppliers

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Key changes – Award Criteria Art 67
 Award of all public contracts must now be on the basis of the Most
Economically Advantageous Tender.
 The most economically advantageous tender may be identified on
the basis of either (i) price; or (ii) cost, “using a cost effectiveness
approach” such as life cycle costing
 Can still award on lowest price

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Key changes – Award Criteria Art 43
 Clarification of social and environmental rules – improvement of
rules on social and environmental aspects of procurement, making it
clear that:
 Social aspects can now be taken into account where relevant,
buyers can request certifications/labels/equivalent evidence of social
or environmental aspects
 Refer to factors directly related to the production process

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Key changes – Award Criteria Art 67 (2)
 Merits of staff assigned to the contract – qualifications / experience.
 Codification of the Lianakis Case C-532/06
 Should ensure by contractual means that staff can only be
replaced by consent and verified. (Recitals)

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Achilles EU Team
Liz Wilson-Lamb EU Services Manager
Debbie Metcalfe EU Procurement Advisor and Trainer
Kate Pucci EU Procurement Advisor and Trainer
Steve Kay EU Procurement Advisor and Trainer
Emily Strange THEMiS Product Manager
Daniel Bremner Sector Account Manager
Sally Griffin Sector Account Manager
Jayne Wellman Administrator
Associates
Professor Sue Arrowsmith Legal Expert
Susie Smith Lawyer and Consultant

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Thank you.
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