Recent changes to EU and UK procurement rules have definitely been an evolution rather than a revolution. Housing organisations need to ensure that their procurement procedures are geared up to the new regulations and so in this session we will explore specific changes to keep organisations out of the danger zones.

1. How the new
Public Contracts
Regulations 2015
will affect you
Richard Auton
Walker Morris LLP
Director

2. Extended
Application
Part B services
Social and other
Services
Concessions
Sub threshold
Use of new
procedures
Competitive
procedure with
Negotiation v
CD
Innovation
Partnership
Dynamic
Purchasing
System and
Electronic
Catalogues
Process
Lots
Variants
Conflict Rules
Communication
Advertising
PQQ
Exclusion
criteria
Guidance
Contract
drafting
Change
Termination
Payment
Case law
codification
Teckal
Companies
Change
Public Co-
operation
Issues under the Regulations

3. Changes to scope of procurement
rules
• Part A and Part B
distinction abolished
 All services will require
procurement under the
Regulations if above
threshold
 New regulations on sub
threshold
• New Procedure for
Social Services
• Separate Directive for
Concessions
Full
Regulated
Procedure
Social
Services
Concessions
Sub-
threshold
PCCR 2013

4. ‒ Health, social and related services
‒ Administrative social, educational,
healthcare and cultural services
‒ Compulsory social security services
‒ Benefit services
‒ Other community, social and personal
services
‒ Religious services
‒ Hotel and restaurant services
‒ Legal services,
- to the extent not excluded
pursuant to Article 10(ca)
‒ Other administrative services and
government services
‒ Provision of services to the community
‒ Prison related services, public security
and rescue services
‒ Investigation and security services
‒ International services
‒ Postal Services
‒ Miscellaneous Services
- Tyre re-moulding
- Blacksmith
Social and Other Specific Services

5. Special procedure
Threshold of £625,000
Contract Notice or continuous
PIN
• May group quarterly
Contract Award Notice
• Light Touch Regime
• Authority to determine
Procedure
– specificities of the
services in question
– compliance with the
principles of transparency
and equal treatment
• Time limits to be reasonable
and proportionate
• May use standard
procedures or others

6. ‒ Award of contracts to take into account:
- the need to ensure quality, continuity, accessibility,
affordability, availability and comprehensiveness of the
services;
- the specific needs of different categories of users, including
disadvantaged and vulnerable groups;
- the involvement and empowerment of users;
- innovation; and
- any other relevant consideration.
Award

7. ‒ All public contracts which are below relevant threshold
‒ Except
- otherwise exempt under Regulations
- sub £10k if central government
- sub £25k for other public bodies
‒ Publish on Contracts Finder
‒ Contract documents to be available free of charge
‒ Have regard to Cabinet Office guidance
Sub Threshold procedures

8. No pre-qualification stage allowed
• except if works or Social care and the value is
above the relevant supplies and services threshold
May ask suitability assessment questions
• only if the relevant and proportionate
Comply with Cabinet Office Guidance
Report Deviations
Assessing suitability

9. List of Offences
updated and now
includes
• terrorist financing
• child labour and other
forms of trafficking in
human beings as
defined in Article 2 of
Directive 2011/36
May disregard
• for overriding reasons
relating to the public
interest
• Such as public health
or protection of the
environment
• If disproportionate
Mandatory Exclusions

10. Discretionary exclusion at PQQ
‒ Significant or persistent deficiencies in the performance of a
substantive requirement under
• a prior public contract,
• a prior contract with a contracting entity or
• a prior concession contract
- led to
• early termination of that prior contract,
• damages or
• other comparable sanctions

11. Limit on exclusion
Maximum
period
• 5 years for mandatory
exclusion
• 3 years for discretionary
grounds
• Cannot exclude if show that
measures taken by it demonstrate
its reliability
– compensation
– active collaboration
– technical, organisational and
personnel preventative
measures
• Must state reasons if
consider insufficient
• paying or binding arrangement to
pay outstanding tax

12. • selecting economic operators to participate in procurement procedures,
and
• deciding whether to exclude economic operators from such participation.
Authorities shall have regard to guidance issued by the
Cabinet Office re:
• the use of questionnaires for the purposes of qualitative selection,
• including the avoidance of burdensome, excessive or disproportionate
questions;
• the assessment of information relevant to qualitative assessment.
Guidance may relate to:
Authority shall send to the Cabinet Office a report
explaining the deviation
Cabinet Office PQQ Guidance

13. Standardised selection questions
• assessing supplier suitability for goods and services
• embed into procurement processes
• Only use those which are relevant and proportionate
• May continue to use PAS91 for Works
Need to be able to justify reasons for any variation
• 'spot checks' under Mystery Shopper Scheme
Deviations from core/additional questions to be reported to the
Cabinet Office within 30 days of the PQQ
• signed off by the Commercial Director, Head of Procurement or equivalent.
Guidance

14. Allow to self certify re mandatory/ discretionary grounds
Evidence following tender evaluation
• i.e. from the winning supplier only
• sooner if necessary for proper conduct
Project specific questions must be proportionate and
relevant
Guidance

15. Minimum financial thresholds clearly stated up front
• Methodology clearly articulated
• not overly risk-averse
• No deselection on turnover alone
Credit rating reports not the sole assessment tool
Details of up to three contracts, in any combination relevant to its
requirement
Requirements clearly stated upfront
• suppliers should be allowed to self-certify that they meet these.
Guidance

16. Modification
of a contract
during its
term
considered
a new award
Will require
new
procurement
unless
within listed
exemptions
Modification during the term of the contract

17. Provided for in the initial procurement documents
• clear, precise and unequivocal review clauses or options
• May include price revision clauses
• scope/nature of possible modifications or options
• conditions under which used
• not alter the overall nature of agreement
For additional works supplies or services that have become
necessary and not included in the initial procurement
• Change of contractor cannot be made for economic or technical reasons
• interchangeability or interoperability
• Significant inconvenience or duplication of costs for the Authority
• Must not exceed 50% of original value
• Not cumulative so long as not circumventing Directive
Changes not needing procurement

18. Where the following cumulative conditions are
fulfilled
• Brought about by circumstances which a diligent authority could not
foresee
• Does not alter the overall nature of the contract
• Must not exceed 50% of original value
• Not cumulative so long as not circumventing
Where value of change (regardless of whether
otherwise substantial)
• Does not exceed relevant thresholds and
• Below 10% of the initial contract value (15% for Works)
• Net cumulative value of the successive modifications
• Provided does not alter the overall nature of the contract
Changes not needing procurement

19. Modifications are not substantial as defined
• Irrespective of their value
Renders Contract or Framework materially different in
character-
• introduces conditions which could have led to different candidates,
tenderers or winner
• changes the economic balance in favour of the contractor
• in a manner which was not provided for in the initial contract
• extends the scope of the contract considerably
• substitution of a new contractor
Changes not needing procurement

20. In accordance with unequivocal review clause or option
Universal or partial succession into the position of the initial contractor,
following corporate restructuring including takeover, merger, acquisition
or insolvency provided
• fulfils the criteria for qualitative selection initially established
• does not entail other substantial modifications to the contract
• not aimed at circumventing the application of the Directive.
Authority steps into position of Contractor vis a vis sub-contractors
Permitted substitutions

21. ‒ Regulations may impose duties in respect of procurement
‒ Publish reports about compliance with the Regulations
‒ Minister may investigate the exercise of relevant functions
relating to procurement
‒ Authority to provide documents /information and give
assistance
‒ May include an investigation of:
- preparations for procurement, and
- management of a contract
Small Business, Enterprise and Employment
Act 2015

22. Contact
‒ Richard Auton
+44(0)113 283 2500
richard.auton@walkermorris.co.uk

23. Questions