The Public Contracts Regulation 2015 - your questions answered part one

Exor Procurement

The Public Contracts Regulation 2015 were enacted on 26th February 2015 with the intention of cutting red tape, ensuring consistency, promoting social value and increasing the amount of public sector spend with Small and Medium-sized Enterprises (SMEs) and Voluntary Community and Social Enterprises (VCSEs).

It is a complex set of regulations and therefore this article aims to clarify what the regulations mean for public sector buyers and suppliers.

Where do the regulations apply?

The regulations apply to contracting authorities within England, Wales and Northern Ireland (except where the Welsh or Northern Irish contracting authorities carry out devolved functions).

They do not apply to contracting authorities in Scotland or to the procurement of health care services for the purposes of the NHS within the meaning and scope of the National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013.

When did they come into effect?

The regulations apply to procurement exercises undertaken by contracting authorities that commenced on or after 26th February 2015, although there are a number of exclusions listed in the regulations.

What are the new requirements?

Contracting authorities are encouraged to consider ways of making their contracts more accessible to SMEs and VCSEs. This can be undertaken in a number of ways including:

  • By creating lots in the contract based on size or specifically required skills.
  • Avoiding the use of pre-qualification questionnaires or using a standard question set (depending of the value of the contract)
  • Using plain language without jargon and acronyms.
  • Setting realistic insurance requirements.
  • Encouraging pre-procurement dialogue.

There are a number of specific requirements depending on whether procurement is for a contract value above or below EU Thresholds. There are a number of EU thresholds, which are dependent on the type of contract and whether the contracting authority is central government or local government. For goods and services it is currently £112,000 in central government and £173,000 outside central government.

For procurement exercises for contracts of value above EU thresholds:

The regulations define a range of procurement methods that can be used by contracting authorities for the procurement of products and/or services, where the estimated value of the procurement is more than EU threshold.

Regulation 107 specifically states that questionnaires for the purpose of qualitative selection may be used to select suppliers to participate in procurement procedures or exclude them from participation.

Regulation 58 (3) specifically states that contracting authorities shall limit any requirements to those that are appropriate, to ensure that a supplier has the legal and financial capacities and the technical and professional abilities to perform the contract to be awarded.

The regulations encourage contracting authorities to allow suppliers to self-certify that they are not subject to any mandatory or discretionary grounds for exclusion and then complete the invitation to tender / quote on the basis of this self-certification.

Evidence that this self-certification is valid should normally be obtained following the final tender evaluation decision (i.e. from the winning supplier only), although can be required sooner if necessary for the proper conduct of the procurement procedure.

Crown Commercial Service guidance on the regulations recommends a set of questions that should be adopted by contracting authorities, to ensure clarity and consistency across the public sector. It also emphasises the use of PAS 91 for construction-related procurement and advises that a European Single Procurement Document (ESPD) is being developed by the European Commission.

The second back of this blog will be published next Monday when we will delve deeper into the EU thresholds and how Exor can help.  

Click here to read the second part of this blog.

Post date: 26 May 2015

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