Public Contracts Regula2ons 2015 Overview of the new changes. May 2016

Transcription

1 Public Contracts Regula2ons 2015 Overview of the new changes May 2016

2 Contents 1. Introduc2on 2. Overview of PCR Procurement Procedures 4. Light Touch Regime 5. Revised Timescales 6. Framework agreements 7. Electronic Procurement 8. Other Changes 9. Selec2on & Exclusions 10. Previous Performance 11. SME Impact 12. Post-Award Contract Opera2on 13. Repor2ng & Reten2on Requirements 14. Young Reforms

3 Introduc2on The informa2on in this presenta2on is an overview of key changes implemented by The Public Contract Regula2ons the full version of this legisla2on can be found at : hvp:// In March 2016, Parliament made a few tweaks to the 2015 Regula2ons. You now need to read PCR 2015 in conjunc2on with : The Public Procurement (Amendments, Repeals and Revoca2ons) Regula2ons 2016: hvp:// Please Note: The overview assumes the audience has a working knowledge of the Public Contract Regula2ons 2006

4 Public Contracts Regula2ons 2015 Applies to contracts over specific thresholds or with a cross border interest Implemented on 26th February 2015 Key excep2ons to the implementa2on date: 18th April 2016 For the procurement of Services covered by the Procurement, Pa2ent Choice & Compe22on (No 2)(Regula2ons) by NHS England or CCGs 18th October All tender processes to run on a fully electronic basis

5 Procurement Procedures The choice of award procedures is very similar to the previous available procedures: Open procedure Restricted procedure Compe22ve Dialogue There are some notable changes: In situa2ons of Urgency there are new accelerated forms of the open procedure and compe22ve procedure with nego2a2on in addi2on to the restricted procedure. A new Compe22ve Procedure with Nego2a2on The grounds for use of the compe22ve dialogue or compe22ve procedure with nego2a2on have been aligned Some further changes have been made to clarify procedural mavers including: Calls for Compe22on can be made by use of a Prior Informa2on No2ce (PIN) rather than a Contract No2ce for a Restricted or Compe22ve Procedure with Nego2a2on. Clarifica2on that nego2a2ons are not mandatory under the Compe22ve Procedure with Nego2a2on provided this possibility is highlighted from the outset More flexibili2es post-tender under the compe22ve dialogue have been introduced. An authority may clarify, specify and op2mise (as opposed to fine-tune ) final tenders Innova2on Partnership is a new procedure which aims to enable both the development and subsequent purchase from the same supplier(s) of an innova2ve work, service or product

6 Light Touch Regime The light touch regime is exactly as described with very limited obliga2ons applicable to the award of these contracts, including: a) publica2on of a contract no2ce (advert) or prior informa2on no2ce (PIN) used as a call for compe22on b) the award procedure must comply with principles of equal treatment and transparency c) the contract must be awarded in line with the adver2sed procedure d) 2me limits must be reasonable and propor2onate Commissioners can choose to follow the specific procedures set out in the new Regula2ons, or use varia2ons There is a discre2on for Commissioners to design their own appropriate procurement procedures as long as these are in keeping with EU principles such as transparency, propor2onality and equal treatment of suppliers

7 Key Changes Revised (Minimum) Timelines* Normal Minimum Time Open Procedure Minimum 2me limit for receipt of tenders 35 days Restricted Procedure Minimum 2me limit for Request to par2cipate 30 days If Electronic Tendering is used as part of the Procurement Process Open Procedure Minimum 2me limit for receipt of tenders in 30 days Where PIN is published (Sent for publica2on between 35 days and 12 months before Contact No2ce is Sent) Open Procedure - Minimum 2me limit for receipt of tenders is 15 days Restricted Procedure Minimum 2me limit for Request to par2cipate 30 days Restricted Procedure Minimum 2me limit for receipt of tenders 30 days Compe22ve Procedure with Nego2a2on and Innova2on Partnerships - Minimum 2me limit for request to par2cipate 30 days Compe22ve Procedure with Nego2a2on and Innova2on Partnerships - Minimum 2me limit for receipt of ini2al tenders 30 days Restricted Procedure Minimum 2me limit for receipt of tenders 25 days Compe22ve Procedure with Nego2a2on and Innova2on Partnerships - Minimum 2me limit for receipt of ini2al tenders 25 days Restricted Procedure Minimum 2me limit for receipt of tenders 10 days Compe22ve Procedure with Nego2a2on and Innova2on Partnerships - Minimum 2me limit for request to par2cipate 30 days Compe22ve Procedure with Nego2a2on and Innova2on Partnerships - Minimum 2me limit for receipt of ini2al tenders 10 days Compe22ve Dialogue Minimum 2me limit for requests to par2cipate 30 days No explicit 2me limits for submission of ini2al/subsequent tenders *For light touch Services, the new Regula2ons simply state that all 2me limits imposed on bidders must be reasonable

8 Framework Agreements (FA) There are a range of changes in the new Direc2ve and Regula2ons rela2ng to FAs. In many cases, this is just a 2dying up exercise, codifying case law and/or guidance which has been issued regarding the opera2on of a FA: Contract No2ce or PIN can be used to adver2se a FA Contracts Finder must also be used for all including below threshold. Contract No2ce must include es2mated total value, planned dura2on and explana2on if dura2on is over 4 years Clarifica2on that intended users must be explicitly iden2fied within the Contract No2ce, but this can include a list or reference to a list which may be available elsewhere eg via a web link. New authori2es can be added provided they can be explicitly iden2fied (so for example would possibly cover some aspects of NHS restructuring) There is no longer a requirement to have a minimum of 3 suppliers on a mul2-supplier FA Turnover requirements are not to exceed two 2mes the es2mated value of a contract without jus2fica2on New suppliers can NOT be added a]er a FA has been set up New Direc2ve clarifies that call-offs with and without mini-compe22on can be used under the same framework. This must be made clear in the procurement documents and the choice of which procedure being used must be made using objec2ve criteria set out in those documents Criteria for selec2ng suppliers for a framework are the usual award criteria i.e. cost or best price/quality ra2o. Call offs without mini-compe22on are not limited to this, so this allows for other methods such as rota2on of providers; sharing of work equally across providers on the framework. The recitals also refer to the needs or choice of the natural persons concerned. This is an important element and likely to be of great interest when frameworks are for the deliver of personal services Clarifica2on is included that call-off contracts arising from a FA can be longer than 4 years and can also extend beyond the life of the FA itself

9 Electronic Procurement All no2ces and procurement documents must be transmived in electronic form. All correspondence with bidding organisa2ons must take place electronically Contrac2ng authori2es will have to provide electronic access to the procurement document in a manner which is unrestricted, full, direct and free of charge to the poten2al providers, from either the date of the publica2on of the OJEU no2ce or the invita2on to confirm interest This will include the Service Specifica2on, Contract Terms & Condi2ons, Evalua2on Criteria and drak ITT. This will have a major impact on Commissioners From 2017 or 2018 (exact date yet to be confirmed), Contrac2ng authori2es will have to use e-cer2s (an online cer2ficates database) when running the selec2on process, as well as a new European Single Procurement Document which will prove there are no grounds for excluding that supplier

10 Other Changes Lots You must provide the main reasons for not using Lots Reasons must be included in the procurement documents or the Regula2on 84 Report Mandatory Exclusions New exclusions adding corrup2on, money laundering, fraud and par2cipa2on in a criminal organisa2on. This now includes: Convic2on for terrorist offences Convic2on for terrorist financing Convic2on for offences around child labour and other human trafficking Maximum exclusion period = 5 years Conflicts of Interest There is a new provision s2pula2ng that you must ensure the procurement has no conflicts be it from the contrac2ng Authority s side or from the provider s side Self Cleaning Defence Cannot exclude an organisa2on where it has provided evidence of measures that are sufficient to demonstrate its reliability. It is up to the CA to provide reasons if it considers the measures are insufficient. Measures will cover: Compensa2on paid or agreed to be paid Situa2on clarified with inves2ga2ng authori2es Appropriate technical, organisa2onal, and personnel measures have been taken to prevent reoccurrence

11 Selec2on and Exclusion PCR 2006 PCR 2015 Economic & financial Technical & professional Suitability (trades register, licence) Economic & financial Technical & professional Suitability (trades register, licence) Express Discre2onary exclusions professional honesty, solvency and reliability Express Discre2onary exclusions no longer limited to professional honesty, solvency and reliability Grave professional misconduct, insolvency etc Grave professional misconduct, insolvency plus new grounds rela2ng to professional quali2es New grounds of a different type e.g. Conflict of Interest, codifying case law, Slavery Act Mandatory Exclusions Mandatory Exclusions (expanded list)

12 Previous Performance significant or persistent deficiencies in performance of substan8ve requirement under a prior public/u8li8es contract which lead to early termina8on, damages or other comparable sanc8ons To rely on this provision, you must show that some kind of sanc2on was applied including termina2on or deduc2on of damages Will not apply where a commissioner has allowed a contract to come to its scheduled end or just agreed an early termina2on Will be important to have effec2ve contract management record to deliver evidence to support exclusions on this ground This refers specifically to public contracts, and the implica2on is that this cannot be used in rela2on to private contracts may need to consider this under grave professional misconduct

13 SME Impact European Single Procurement Document Aim of this is to reduce the burden of documenta2on, especially for SMEs Suppliers can use the ESPD rela2ng to exclusions and financial/technical posi2on at the 2me of making a request to par2cipate or submipng a tender Must be accepted in place of cer2ficates. This would include things like ISO Cer2fica2on, lis2ng on a trades register etc. However, it is unclear whether this also covers financial accounts Turnover The minimum yearly turnover that bidders are required to have shall not exceed twice the es2mated contract value, except in duly jus2fied cases If exceeded, the Contrac2ng Authority must indicate their main reasons in the procurement documents or in the Final report BUT a CA may request any documenta2on at any point when it is necessary to ensure the proper conduct of the procurement procedure. This could, therefore, mean that it is appropriate to ask for this type of documenta2on at short-lis2ng stage as part of any form of restricted process (including Compe22ve Dialogue and Compe22ve with Nego2a2on) ie only of those organisa2ons to be invited to submit a tender

14 Post-Award: Contract Opera2on There are two key new requirements rela2ng to the opera2on of contracts post-award: Contract Modifica2ons These provisions confirm circumstances under which a contract can be varied without the need for a new procurement process There is a new Contract Modifica2on No2ce Termina2on You can now terminate a contract in a limited number of scenarios, one of which is where there has been a substan2al modifica2on which would have required a new procurement procedure Reflected within GC 17.8 in the drak 2016/17 NHS Standard Contract

15 Repor2ng & Reten2on Requirements Repor2ng and recording obliga2ons are more extensive for authori2es under the 2015 Regula2ons and it is appropriate to ensure that internal systems are updated to reflect these new requirements For each tender process that leads to the award of a contract or framework, the Contrac2ng Authority must produce a wriden report to include all the key informa2on on the process. This report must be retained on file, but may be requested in whole or in part by the European Commission and/or the Cabinet Office. The report must include: Name & Address of Contrac2ng Authority Subject maver of the contract Contract value Names of bidders rejected at PQQ stage Reasons for each bidder being rejected Name(s) of selected bidder(s) Reasons why successful tender(s) was successful Share of any contract intended to be sub-contracted to third par2es Conflicts of interest iden2fied How any Conflicts of interest were resolved A requirement to retain all concluded contracts where the contract value exceeds 1 million (supplies or services) and to grant access to these contracts if requested subject data protec2on rules It also relevant to note that the Cabinet Office has reserved itself a right to request informa2on beyond the scope of that listed in the Regula2ons in order to enable it to respond to Commission requests

16 Young Reforms

17 Adver2sing Below-threshold contracts Publish informa2on on the opportunity on Contracts Finder within 24 hours of the 2me you first adver2se the opportunity in any other way. Not to include a pre-qualifica2on stage A requirement to include in every public contract (whether or not subject to the 2015 Regula2ons) provisions s2pula2ng that the authority will pay the contractor no later than 30 days from the date on which the invoice if valid and undisputed A requirement to have regard to any guidance published by the Cabinet Office in rela2on to these new requirements A new obliga2on to adver2se contract no2ces as well as contract award no2ces on the Contracts Finder website for any contracts worth: 10,000 for central government departments and agencies. 25,000 for sub-central authori2es Publish informa2on on contract award within a reasonable 2me on Contracts Finder Above-threshold contracts Publish on Contracts Finder any contract no2ce sent to the EU s Publica2ons Office (OJEU No2ce) for publica2on within 24 hours of when the OJEU advert is published Publish certain Contract Award informa2on on Contracts Finder within a reasonable 2me not defined, but CCS guidance recommends within 90 days of contract award

18 Pre-Qualifica2on Ques2onnaires Below-threshold contracts Cannot have a PQQ stage, but can ask suitability assessment ques2ons (always bearing in mind propor2onality principle) which must be relevant to the subject maver of the contract; and used only to assess whether minimum standards are met i.e. on a pass/fail basis. The procurement can s2ll have an ini2al siking element containing pass/ fail ques2ons Above-threshold contracts Mandatory use of standardised selec2on ques2ons, which should be adopted. Not all ques2ons will be relevant to every procurement and therefore the PQQ needs to be considered on a case-by-case basis. Core ques2ons: Supplier Informa2on Exclusion & self-cleaning Economic & Financial Standing Technical & Professional standing (past experience) Technical & Professional standing (project specific) Addi2onal modules: Insurance Compliance with Equality Legisla2on Environmental Management Health & safety Addi2onal modules may only be used where it is relevant and propor2onate to do so and an audit trail containing reasons for using these should be maintained Any devia2on from the wording of the standard PQQ ques2ons must be reported to CCS within 30 days of the PQQ being made available on Contracts Finder. A CA has to report itself and there will also be a system of spot checks by Mystery Shopper

19 For further informa2on, please contact: Chris Walker Director Mobile: