3 The new European Public Procurement Directives_English
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  • 1. Peter Bennett UK Cabinet Office Crown Commercial Service Procurement Policy Team The new European Public Procurement Directives The UK’s approach to the new Directives and implementation plan ENP East Regional Procurement Conference: Paris 24 April 2014
  • 2. EU Public Procurement Reform • Current directives adopted in 2004 • Evaluation of 2004 Directives & consultations on modernising the rules • Commission announced legislative proposals on 20 December 2011: covering public sector & utilities Directives & concessions Directive • Negotiations January 2012 – July 2013 • Directives adopted February 2014 • Directives published in OJEU: 28 March 2014 • Concessions (2014/23/EC) • Public sector (2014/24/EC) • Utilities (2014/25/EC) • Areas of continuity as well as change in the new rules Unclassified
  • 3. How the UK’s negotiating position developed • Draft UK response to Green paper agreed by Ministers collectively (Cabinet European Affairs Committee) • Procurement Policy Notes for stakeholders • Cross-Whitehall Group meetings to review progress • Write round to Ministers to: - agree UK negotiating line - agree UK approach before EU Council meetings - inform about outcome • Regular exchange with industry, social partners & other organisations (eg: CBI, LGA & NHS Confederation) UNCLASSIFIED 3
  • 4. Why the UK welcomes the new rules The UK Government wanted improvements to the EU public procurement rules to free up markets, reduce the deficit & facilitate growth • Reduce lengthy and burdensome procurement processes that add cost to business and barriers to market competition • Modernise the procurement procedures and provide more flexibility for purchasers to follow best commercial practice, so that the best possible procurement outcomes can be achieved • Support measures to enhance SME access to public procurement, where such measure are non-discriminatory and are consistent with a value for money approach. • Allow a flexible approach towards employee led organisations/mutuals to enable employees to gain experience of running public services prior to full and open competition UK had a wish list of 10 main changes, which fitted with programme of domestic reform UNCLASSIFIED 4
  • 5. Key issues & outcomes for the UK • Review/raise the threshold for goods and services procurement (thresholds not raised, but Art. 92 covers review of application of thresholds & suggesting higher GPA thresholds) • Temporary reservation for employee-led organisations (mutuals social enterprises) (in Art. 17(2) of Council‘s December 2012 text & finally agreed as a reservation for certain services contracts under “light touch” services regime Art. 77) • Allow contracting authorities (CA’s) much more freedom to negotiate (covered in Art. 29: competitive procedure with negotiation: which procurements it applies to covered in Art. 26(4)) • Improve framework agreements (Art 33) and similar models (such as Dynamic Purchasing Systems) (DPS much easier to use: Art. 34) • Enable faster procurement (shorter timescales for the basic procedures) Unclassified 5
  • 6. Key issues & outcomes for UK • Allow assessment of past performance of bidders (Art. 57(4)(g) provides for exclusion of economic operators for significant or persistent deficiencies) • Allow the skills/quality of service providers to be taken into account, where appropriate, at the award stage (Art. 67(2)(b)) provides that relevant experience of the staff can be taken into account for service contracts and contracts involving the design of works) • Less red tape in the selection process though self-declaration (European Single Procurement Document) with the winning tenderer required to supply supporting evidence: Art 59) • Provide for the use of electronic marketplaces by public authorities (use of electronic catalogues provided for: Art. 36) • Make clear how social/environmental aspects can be considered in various parts of the procurement process, such as production processes in award criteria: Art. 67(3) Unclassified 6
  • 7. Other key changes • Part A/Part B Services distinction removed. New light-touch regime for social, health and some other services. €750K threshold. OJEU advertising and national rules. • Improved safeguards from corruption, such as measures against conflicts of interest, time limits for exclusion, and self-cleaning measures. • SME friendly easements. Encouraged to break contracts into lots. Turnover cap of twice contract value. • Preliminary market consultation encouraged and allowed, to facilitate better outcomes and shorter procurement times. • Innovation Partnership procedure. Intended to allow scope for more innovative ideas, where supplier enters into partnership with authority to develop a new product or service. • Full life-cycle costings can be taken into account when awarding contracts. UNCLASSIFIED 7
  • 8. UK Implementation Member States have until April 2016 for implementation in national law. UK Ministers want to transpose early to get benefit of improvements, subject to collective Ministerial agreement Will implement by 3 separate Statutory Instruments (S.I.), replacing the existing SIs for the public sector and utilities, with a new S.I. for concessions Copy out approach adopted to avoid goldplating Each of these SIs will also provide for remedies. UK experience is that there are not many court cases, but there is significant concern about potential legal action Unclassified 8
  • 9. UK Implementation: engagement with stakeholders • Discussion papers circulated seeking views on the 37 different policy options for Member States, divided into the following subjects: – Light touch regime, SMEs, strategic use of procurement, termination of contracts, sheltered workshops, procedures, tender assessment, central purchasing bodies, e-procurement, exclusions/anti-corruption & standard forms • Draft Regulations will be produced for full public consultation • Results will be reflected in final Regulations, during the second half of 2014 UNCLASSIFIED 9
  • 10. UK implementation: embedding the Directives Face to Face Training Delivered through 140 volunteer trainers, trained by Cabinet Office Over 200 sessions across the UK in June & July 2014 reaching 6,000 procurement personnel Need to cascade to 40,000 separate organisations E-Learning Hosted by Crown Commercial Service (CCS) from June 2014 (60K capacity) Training needs to start before Regulations are in place, but e-learning material will be updated regularly Materials Handbook available on the Gov.uk and CCS Website from June 2014. Guidance and specific materials will follow. Transposition webpage https://www.gov.uk/transposing-eu-procurement- directives UNCLASSIFIED 10
  • 11. Thank you UNCLASSIFIED 11