How will the UK implement the new public procurement directive?

Transcription

1 How will the UK implement the new public procurement directive?

2 18(2) Member States shall take In its discussion papers, the UK The Cabinet Office's proposed approach is to implement appropriate measures to ensure that considers that it has three choices: this choice only through administrative measures. in the performance of public (i) regulatory measures; (ii) contracts economic operators administrative measures, such as comply with applicable obligations policy or guidance materials; or (iii) in the fields of environmental, social a combination of these approaches. and labour law established by Union It has indicated that there may be law, national law, collective some risk that it has not 'ensured' agreements or by certain compliance if it only adopts international environmental, social administrative measures, but clearly and labour law provisions. The sees adopting administrative choice for Member States is what measures as the easiest option. appropriate measures to take to Such options may include specifying ensure this. in guidance that contracting authorities must include relevant obligations in contract clauses, and specifying that non-compliance with such a clause would be grave professional misconduct (meaning that the bidder risks exclusion from future competitions). Alternatively, the Cabinet Office could require in the s, and therefore more formally, that contracting authorities include such a contractual condition. 19(2) Member States may establish The Cabinet Office has indicated The Cabinet Office proposes not transposing this standard terms to consider how that it does not see this as a provision and has indicated that it does not intend to do groups of economic operators meet particular problem, and has so through administrative measures either. Its Page 1 of 22

3 various selection criteria, instead of these assessments being made by individual contracting authorities. suggested instead that it may adopt an administrative approach. For example, it may provide standard contract terms to cover group participation, or simply leave it to the contracting authorities' discretion and monitor whether centralised intervention is necessary. consultation appears to have revealed that the UK contracting authorities did not consider it to be an issue that needed to be addressed. 20(1) Member States may reserve the right to participate in public procurement procedures to sheltered workshops and economic operators whose main aim is the social and professional integration of disabled or disadvantaged persons and similar. Article 20 is a development of Article 19 in the previous Directive. As this was implemented in England on a permissive basis ("a contracting authority may ") Article 20 in the new Directive also seems likely to be implemented, although possibly with wording more closely aligned to the Directive. The discussion paper addresses whether this provision should be transposed. It is assumed that the existing approach (i.e. allowing flexibility to reserve contracts) will remain but they want to confirm this with the relevant lead departments. One option is to continue the right to reservation, taking into account 20 The Cabinet Office proposes transposing this provision into the draft s and so contracting authorities will be able to reserve contracts if they choose to do so. The Cabinet Office intends to issue guidance on how to interpret the terms used. Page 2 of 22

4 that the new Directive requires that 30% of the employees concerned to be disabled. The other option not to transpose on the grounds that there is no longer a case for reserving rights. 22(4) For public works contracts and The Cabinet Office discussion paper The Cabinet Office is proposing not to transpose this design contests, Member States may contains a fairly open discussion provision into the draft s. require the use of specific electronic with extensive discussion questions. tools, such as of building HMG policy (in its construction information electronic modelling strategy) requires the use of tools or similar. collaborative 3-D BIM on all projects by 2016, but the discussion paper seems largely open-minded and gives no pointers as to any Cabinet Office "direction of travel". 22(6)(b) Member States or contracting authorities within a framework established by the Member State, shall specify the level of security required for e-communications; this level should be proportionate to the risks attached; The discussion paper points out the difficulties in imposing a one size fits all approach, and suggests that a logical position would be to set a framework for contracting authorities to decide. Stakeholders are asked to suggest any 22(18) and (19) In line with its position in the discussion paper, the Cabinet Office is proposing to implement this provision in the manner which it sees as allowing the most flexibility for contracting authorities, choosing only to set out a list of factors to which contracting authorities are to have regard to when assessing the level of security required at each stage of a procurement procedure. disadvantages in this and/or advantages in a centrally-specified approach. These factors to be considered for each procurement will include, amongst others, risks to national security, risks to the proper functioning of the procurement process and The discussion paper asks a number risk of malicious attacks. of follow up questions for each Page 3 of 22

5 approach, in a way which does not suggest a preferred position. 22(6)(c) Where Member States (or The Cabinet Office discussion paper 22(18) and (19) The same approach will apply to the decision about contracting authorities within a seeks views without indicating the whether advanced electronic signatures are required as framework established by the likely outcome of this choice. those set out above in relation to the level of security Member State) conclude that the Questions that it poses include: if required for e-communications. level of risks is such that advanced the UK government makes the electronic signatures are required, decision what level of risk will contracting authorities shall accept require the use of advanced advanced electronic signatures electronic signatures?; if a supported by a qualified certificate, framework is set should it subject to various conditions. recommend the use of electronic Choice is whether the Member State makes the conclusion about the level of risk or sets a framework for contracting authorities to do so. signatures for certain levels of risk or leave this entirely to the discretion of individual procuring bodies?; and how much detail should be set in law and how much should be set out in non-statutory guidance and advice? 24 Members States shall ensure that contracting authorities take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of the procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators. The Cabinet Office in its discussion paper has not indicated any express preference as to how it intends to transpose these provisions. However, it has asked for initial views as to whether the obligation could be met if the UK simply transposed a requirement that contracting authorities themselves must take appropriate measures to 24 In line with the discussion paper, the Cabinet Office has chosen only to copy the wording of this provision into the draft s, and has said that more detailed requirements on conflicts of interest can be elaborated through guidance notes. Page 4 of 22

6 prevent, identify and remedy conflicts. It has also asked for views on whether non-statutory advice information and directions may suffice. That suggests that its preference is to simply copy the wording of the Directive, but to accompany it with guidance as to what measures a contracting authority should properly take. Interestingly, the Cabinet Office has also asked whether any specific powers of enforcement are needed for these measures regarding conflicts of interest. 26(5) Where the contract is awarded by restricted or competitive procedure with negotiation, Member States may provide that sub-central contracting authorities (or specified categories of them) may make the call for competition by means of a Prior Information Notice (rather than a contract notice). Given that this increases flexibility it seems likely that this will be transposed in full i.e. available to all sub-central contracting authorities. The discussion paper is of the view that this approach should help in the planning of procurement and reduce problems related to timescales. The UK is in support of this provision. 26(8) The Cabinet Office proposes transposing this provision in full. 26(6)/32 Member States can provide that It seems highly likely that this will 26(10)/32 As seemed likely, the Cabinet Office proposes Page 5 of 22

7 contracting authorities may use the negotiated procedure without prior publication (in various circumstances specified in the Directive). be transposed. Such derogations appear in the current s and the UK is keen to ensure maximum flexibility for contracting authorities. The discussion paper says that this approach is allowed where it would not serve any purpose to conduct a fully open and competitive procedure. transposing this provision in full. 28(4) In relation to the restricted procedure, Member States may provide that all or specific categories of sub-central contracting authorities may set the time limit for the receipt of tenders by mutual agreement between the contracting authority and selected candidates, subject to various provisos. Given that this increases flexibility it seems likely that this will be transposed. The Cabinet Office has previously noted that flexibility on time scales could be helpful for speeding up simpler or off-the-shelf procurements. The discussion paper says that this gives flexibility on deciding the amount of time that is needed to provide tenders. It notes that this has the potential to avoid wasting time and to improve efficiency. 28(7) and (8) The Cabinet Office proposes transposing this provision in full the possibility of agreed shorter time limits will be available to all sub-central contracting authorities. 36(1) Member States may render the use The Cabinet Office seeks views as to The Cabinet Office proposes not to transpose this of electronic catalogues mandatory whether the use of electronic provision, in keeping with its approach of allowing in certain types of procurement. catalogues should be made maximum flexibility to contracting authorities. mandatory and if so the types of procurement that should be Page 6 of 22

8 covered. 37(1) Member States may provide that contracting authorities may acquire supplies and/or services from a central purchasing body. Member States may also provide that contracting authorities may acquire works, supplies or services using contracts/dynamic purchasing systems/framework agreements operated or set up by a central purchasing body. Under the Cabinet Office Discussion Paper on CPBs, Cabinet Office proposes transposing this flexibility into s (as is the case with the equivalent provisions in the current s) and sees this as so clear cut an issue as not to invite comments. 37(1) The Cabinet Office proposes transposing this provision in full. 37(1) Member States may also provide The Cabinet Office states in the As a slight move back from the likely position flagged in that certain procurements are to be Discussion Paper that it will the discussion papers, the Cabinet Office does not (i.e., must be) made by having transpose this to reinforce the propose to transpose this provision into the s, recourse to central purchasing existing mandate on central but has stated that if it were to impose any such bodies or one or more specific government departments to procure mandatory requirement in future, it would do so through central purchasing bodies. common goods and services separate s. through the CCS. However, it invites comments on the extent to which CPBs are mandated in the wider public sector and utilities sector, the extent to which compliance causes issues, the categories this applies to, what CPBs are specified and likely future changes. This suggests that Page 7 of 22

9 although the Cabinet Office is keen in principle it is potentially open minded on scope and mechanisms for this. 39(2) Member States shall not prohibit The starting point in the Cabinet 39(3), (4) and The Cabinet Office proposes transposing this provision contracting authorities from using Office Discussion Paper is that this (5) as a positive statement that contracting authorities are CPBs located in other Member could limit the ability to ensure free to use CPBs located in other Member States. The States. value for money. However, the Cabinet Office is proposing not to limit contracting They may, however, choose to specify that their contracting authorities can only use one particular of the two types of central purchasing offering. (The choices Cabinet Office is looking for confirmation (and indeed any input on whether any UK contracting authorities have in fact purchased from overseas CPBs). authorities from using CPBs in other Member States in the way which was potentially permitted under the Directive. are: (a) where the CPB buys in its own name and resells to contracting authorities and (b) where the CPB awards contracts, operates dynamic purchasing systems or concludes framework agreements to be used by contracting authorities). 46(3) Member States may provide that, We are not aware that the UK has 46(3) and The Cabinet Office is proposing to transpose this where more than one lot may be yet considered specifically how to 46(6) provision in full, allowing contracting authorities the awarded to the same tenderer, transpose these provisions but in discretion to permit bids across a combination of lots. In contracting authorities may award line with its general policy not to the consultation document, the Cabinet Office states that contracts combining several or all gold plate and to ensure maximum its interpretation is that this naturally follows from the lots where they have specified in the flexibility it seems likely that the UK decision to allow bids to be made for combined lots. contract notice or in the invitation to will provide that more than one lot confirm interest that they reserve may be awarded to the same the possibility of doing so and Page 8 of 22

10 indicate the lots or groups of lots tenderer in specified circumstances. that may be combined. 46(4) Member States may make it We are not aware that the UK has The Cabinet Office does indeed propose not to transpose obligatory to award contracts in the yet considered specifically how to this provision and instead to leave the decision as to form of separate lots under transpose these provisions but in whether to divide the contract into lots to the discretion conditions to be specified in line with its general policy not to of the contracting authority. In line with the obligations accordance with their national law gold plate and to ensure maximum in the Directive, if a contracting authority elects not to and having regard for Union law. flexibility it seems unlikely that the divide the contract into lots, it must indicate in writing UK would want to oblige why it has chosen not to do so. contracting authorities to award contracts as separate lots. 50(2) Contracting authorities do not need Consistent with the general Cabinet Owing to a majority of respondents being opposed to to issue award notices for individual Office aim of reducing implementing this provision, the Cabinet Office proposes call off contracts under frameworks. administrative overhead, we would not to transpose this optional obligation into the draft Member States may, however, provide that contracting authorities expect them not to implement this in England and Wales. s. should group notices of call-off The discussion paper states that this contracts under each framework is considered to be an agreement on a quarterly basis (and administrative burden and that if then submit a contract award notice the UK were to avail itself of this for them within 30 days of the end of option, it would need to be made the quarter). clear that contract award notices should be provided for call-offs and that a quarterly grouping should be the best method of doing this. The discussion paper considered not transposing this option. Page 9 of 22

11 56(2) The Cabinet Office notes that whilst 56(3) The Cabinet Office proposes not to include this it is logical to first check that the prohibition, in line with its policy of ensuring maximum Under the open procedure, exclusion and selection criteria are flexibility for contracting authorities. Respondents to its contracting authorities may examine satisfied, there may be valid informal consultation were opposed to mandating such tenders before verifying if any of the organisational or operational rules. grounds for exclusion apply or if the reasons for doing this at a later tenderer meets the selection criteria. stage. As such not to provide for this Member States may however option would reduce flexibility. It prohibit this, or permit it only in seems likely that contracting certain types of procurement or in authorities will be given the specific circumstances. flexibility to decide when they check that the tenders meet the exclusion and selection criteria. 56(3) Contracting authorities may ask economic operators to submit, supplement, clarify or complete information or documentation which is incomplete, erroneous or missing "unless otherwise provided for by the applicable national law implementing this Directive. The Cabinet Office notes that it would be sensible to allow certain matters, such as obvious errors to be corrected. However, whilst one option considered is to transpose this provision in full, the Cabinet Office is considering whether it should be limited to cases in which the incompleteness or other error is clear rather than merely apparent. 56(5) The Cabinet Office proposes to transpose this provision in full, choosing not to exercise the ability under the Directive to limit this provision. 57 A Member State may require The Cabinet Office has indicated 57(4), (5) and As expected, the Cabinet Office proposes to transpose contracting authorities to exclude that it intends to leave this as a 6) this provision as a discretionary ground for exclusion. from participation in a procurement discretionary ground for exclusion an economic operator where the to avoid gold-plating and ensure contracting authority can simplicity. demonstrate by any appropriate Page 10 of 22

12 means that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions. Member States may provide for derogation from the mandatory exclusion provisions, on an exceptional basis, for overriding requirements in the public interest. Note that the grounds for mandatory exclusion, from which the Member State can provide for a derogation, include participation in a criminal organisation, corruption, fraud, terrorist offences or offences linked to terrorist activities, money laundering or terrorist financing and child labour and other forms of trafficking in human beings. The UK has previously implemented this derogation, and has indicated that it is likely to do so again. It gives greater powers and discretion to contracting authorities, avoids gold plating and the Cabinet Office believes it reduces the likelihood of UK firms being disadvantaged. 57(7) The Cabinet Office proposes to implement this derogation. Where the exclusion relates to failure to pay tax or social security, Member States may provide for derogation from mandatory exclusion where exclusion would be clearly disproportionate, such as where only minor amounts of taxes or social security are unpaid. The Cabinet Office has indicated that it will apply the same logic as for the derogation from the other mandatory grounds for exclusion leaving the decision as to whether to exclude to contracting authorities and therefore choosing to transpose a discretionary derogation for minor amounts of unpaid taxes. 57(8) The Cabinet Office proposes to implement this derogation in line with the current s. Page 11 of 22

13 Member States may transpose as either discretionary grounds for exclusion or mandatory grounds for exclusion situations where the economic operator (in summary): (a) Has violated social/ environmental/ labour laws; (b) is bankrupt/insolvent; (c) has committed grave professional misconduct; (d) has significantly or persistently under-performed in previous public contract(s); The Cabinet Office has indicated that leaving the decision as to whether to exclude to each contracting authority would seem the simplest approach and avoid gold plating. However, it seems open to views to the contrary, for example on the grounds that it is better for there to be a consistent approach it is therefore not inconceivable (but unlikely) that some of the discretionary grounds could be transposed as mandatory grounds for exclusion. 57(9) The Cabinet Office proposes to transpose all of the grounds in the list as discretionary exclusions. (e) (f) (g) has misrepresented the evidence required to assess exclusion grounds; has attempted to unduly influence the decision-making process; has attempted to distort competition in various kinds of way. Member States may provide that the In principle, the Cabinet Office has Since the Cabinet Office is proposing to implement this contracting authority does not have indicated that the UK would not exclusion as a discretionary ground for exclusion to exclude an economic operator wish economic operators to be anyway, contracting authorities will in any event have which is bankrupt/subject to excluded for financial reasons if the choice of whether to apply this or not. insolvency/winding up proceedings they are able to perform the Page 12 of 22

14 where the contracting authority has established that the economic operator will be able to perform the contract. contract without significantly increased risk of default. It seems likely that the choice will be left to contracting authorities rather than mandated, and that the UK government will issues guidance to explain how contracting authorities should decide if someone is able to undertake the contract. Member States may require contracting authorities to exclude any economic operator at any stage of the procurement procedure if it is discovered that the operator satisfies one of the discretionary grounds for exclusion. The Cabinet Office has not addressed this point in its discussion papers, but in line with its approach on other topics we would expect it to leave a discretion to the contracting authority in such circumstances, but not mandate that it must exclude someone in such circumstances. 57(11) As expected, the Cabinet Office proposes to implement this provision as a discretion on the part of contracting authorities. By law, regulation or administrative provision, Member States must specify the implementing conditions for mandatory exclusion. They shall, in particular, determine the maximum period of exclusion (subject to self-cleaning) up to a maximum of 3 or 5 years (depending on the exclusion ground concerned). The choice here is whether to opt for the maximum exclusion periods There are two separate issues arising under this policy choice: 1. Whether the UK should identify the specific offences under UK law that correspond to those in the mandatory grounds for exclusion in the Directive. It has done so in the current s, but seems to be unsure as to whether to do so when transposing the new Directive, although the implication of the 57(1) list of mandatory exclusions 57(12) and (13) exclusion periods The Cabinet Office has set out the specific offences under UK law which it proposes will attract mandatory exclusion in order to ensure legal certainty. As expected, it has also adopted the maximum periods of exclusion five years for mandatory exclusion offences and three years for discretionary exclusion offences. Page 13 of 22

15 allowed by the Directive, or limit these to shorter periods. Cabinet Office's paper on this topic is that it is leaning towards indicating specific UK offences. 2. What maximum periods of exclusion the UK will implement. The Cabinet Office has not yet indicated any preference, however we would expect that it would tend towards implementing the maximum periods to provide greatest flexibility for the contracting authorities. 67(2) Member States may provide that The Commission's original proposal As expected, the Cabinet Office is proposing not to contracting authorities may not use provided that Member States could transpose this provision. price only or cost only as the sole provide that certain types of award criterion or restrict their use contract, such as 'intellectual to certain categories of contracting services' should be awarded on the authorities or certain types of basis of MEAT. This was intended to contracts. encourage more emphasis on quality. The European Parliament tried to remove the lowest price award criteria entirely, however this faced strong resistance from many Member States including the UK. The final wording represents a compromise, however given the UK's position in the negotiations that the full range of criteria should be available for all contracting authorities and for all types of Page 14 of 22

16 contract so as to ensure flexibility, it seems unlikely that this provision will be transposed. 71 Member States may make it compulsory (instead of discretionary) for a contracting authority to ask tenderers to indicate in their tenders any share of the contract they may intend to subcontract to third parties and any proposed subcontractors. The Cabinet Office has not indicated any specific preference or likely way of implementing. 71(1) The Cabinet Office proposes implementing this provision as a discretion on the part of the contracting authority. Member States may provide that at The Cabinet Office's paper The Cabinet Office is proposing not to transpose this the request of the subcontractor and highlights that not having specific provision but, as noted in the discussion paper, considers where the nature of the contract so provision for direct payment in the that there is no need for an express provision permitting allows, the contracting authority s has never prevented it such payment as there is in any event nothing to prevent shall transfer due payments directly being a possibility before (for contracting authorities providing for direct payments to to the subcontractor. Member example, Project Bank Accounts subcontractors. States may even provide for more have been used in the UK stringent liability rules on direct construction sector). Whilst the payments e.g., by making it not be Cabinet Office does not express any necessary for subcontractors to have specific view, the tenor of the paper to request such direct payment. seems to be that it supports quicker payment for SMEs in the supply chain but that there is no need to implement specific provisions which may increase administrative burdens for contracting authorities. Contracting authorities have to The Cabinet Office has indicated As expected, the Cabinet Office has chosen not to Page 15 of 22

17 obtain from the main contractor (only for works contracts or for services contract which are provided at the contracting authorities' premises) information about the subcontractors involved and require the main contractor to update that information if it changes. However, Member States can also choose to impose an obligation on the main contractor itself to provide such information. that placing the obligation on the main contractor would tend to impose more obligations, and therefore limit flexibility, but it seems open to hearing views to the contrary. transpose this provision. Member States may apply the information obligations to other contracts, such as supply contracts or all services contracts or to other subcontractors further down the supply chain. The Cabinet Office has not indicated any specific preference or likely way of implementing. 71(7) The Cabinet Office proposes implementing this provision as a discretion on the part of the contracting authorities. Member States may require contracting authorities to verify whether there are grounds for mandatory and/or discretionary exclusion of any subcontractors, and may require that contracting authorities require the main contractor to find a substitute subcontractor where appropriate. The Cabinet Office has indicated that placing the obligation on the main contractor would tend to impose more obligations, and therefore limit flexibility, but it seems open to hearing views to the contrary. 71(8) The Cabinet Office proposes implementing this provision as a discretion on the part of the contracting authorities. Page 16 of 22

18 Where a Member State exercises the The Cabinet Office has not indicated As the Cabinet Office proposes leaving everything to the above options on subcontracting, it any specific preference or likely way discretion of the contracting authority it will not be must specify the implementing of implementing. It sought views as necessary for it to specify implementing conditions for conditions for the various measures. to whether it should impose any these measures. Member States may limit the scope conditions and, if so, whether it of the requirements. should be for any specific services, or for anything over a specific value for example. 73 Member States shall ensure that contracting authorities have the ability to terminate contracts in certain circumstances "under the conditions determined by the applicable national law. The main issues are likely to be how this should be ensured and under what conditions. There is discussion on how to ensure the effective implementation of this Article. The discussion paper considers whether to ensure that all contracting parties include a condition in their contracts allowing them to terminate if there is a breach. Risk associated with relying on parties to adopt this approach? Mitigate by having an automatically arising right? It discusses whether to use the implementing regulation to insert a deemed provision in every public contract, setting out grounds for termination, consequences, etc. Or would it be preferable for those issues to be left to the contracting parties due to the differing parties involved in different types of 73 The Cabinet Office proposes implementing this by requiring that contracting authorities include in every contract provisions enabling the contracting authority to terminate in the circumstances described in Article 71 of the Directive, but have not specified any additional circumstances that may give rise to a contracting authority termination right. If the term does not appear in a contract, draft 71(3) states that such a term shall be implied into that contract. The relevant circumstances are (i) where there has been a substantial modification that constitutes a new award; (ii) where it is discovered after award that the contractor should have been excluded on mandatory exclusion grounds; and (iii) where the ECJ has declared a serious infringement by the contracting authority of its obligations meaning that the contract should not have been awarded. Page 17 of 22

19 contracts? It discusses whether to allow parties to terminate if any of the specified grounds for termination, which would be set out in the implementing regulation, are found to apply. Questions whether it would be possible to use wording applicable to all types of contracts. Lastly, it discusses the Cabinet Office issuing guidance to contracting parties requiring them to include a condition in all of their public contracts that allows them to terminate (with or without notice) if any of the specified grounds for termination were found to apply. Contracting authorities and a Mystery Shopper service would be required to ensure compliance. Questioned whether would be useful to contracting parties if Cabinet Office issued a standard contract condition for use in this scenario. Questioned risk of non-binding guidance with no legal underpinning. Risk that UK seen to have failed to "ensure" as required by the provision and therefore be in breach of the Directive. Page 18 of 22

20 76 Member States shall put in place appropriate national rules for the award of contracts under the "light touch regime. The choice is what the national rules should be. The Cabinet Office stresses the UK's policy of not gold-plating (i.e. not going beyond the minimum requirements of the Directive), but notes that for this Article it is difficult to ascertain what the minimum requirements are. The Cabinet Office notes that the starting point for the minimalist approach would seem to be that the light touch regime only contains OJEU advertising, the Treaty principles, and any particular requirements imposed by case law. The Cabinet Office poses a series of questions as to how these rules could look. For example should these rules make clear that some or all of the procedures in the main rules are available in the light-touch regime or would this be unhelpfully restrictive? This seems to be an area in which the Cabinet Office has no decided view beyond the general principle of not gold plating. 76 The Cabinet Office has set out an approach that, consistent with its overall approach to the draft s, provides for maximum flexibility on the part of contracting authorities. This requires publication of a contract notice and a contract award notice (the contract award notice can be published quarterly for a number of contracts instead). The s then only require contracting authorities to observe the principles of transparency and equal treatment. The draft s specify that observing these principles would require a contracting authority to follow the rules it has set out for itself in the contract notice as regards conditions for participation, time limits and the award procedure to be applied. That award procedure can differ from any of those described in the s. All time limits must be reasonable and proportionate. 76 Member States may provide that the The Cabinet Office notes that whilst As expected, the Cabinet Office is proposing not to choice of service provider (for 'light UK procurement has an established implement this provision. The consultation document touch' regime services) shall be policy of pursuing best value for states that the position is that these matters can made on the basis of MEAT, taking money (a concept analogous to adequately be covered in policy and guidance. into account quality and MEAT) mandating the use of MEAT Page 19 of 22

21 sustainability criteria for social services. would remove flexibility and thus would be against the UK's general appetite for more not less flexibility. It seems unlikely that this article will be transposed. 77 Member States may provide that contracting authorities may reserve the right for organisations to participate in procedures for the award of public contracts exclusively for certain health, social and cultural services. The UK pushed very hard for such a provision in the negotiations and as such it is inconceivable that it will not be transposed. 77 As expected, the Cabinet Office is proposing to transpose this provision in full. 90 Member States may postpone the Whilst the UK recognises the 1(3)(a)-(c) The Cabinet Office is proposing to transpose this requirement for electronic benefits of e-communication its provision and take advantage of the options in the communication until 30 months preference for avoiding gold-plating Directive, except in relation to provisions where after the deadline for transposition is likely to mean that it will take electronic communication is mandatory (e.g. for of the directive in national law. advantage of this option. However dynamic purchasing systems or central purchasing this does not mean that the UK will bodies) not have a policy (as opposed to a legislative requirement) of earlier implementation of full e- communication. 90 Member States may postpone the requirement for contracting authorities to have recourse to e- Certis and only require types of certificates etc. which are covered by e-certis until 30 months after the Taking advantage of the derogation would avoid gold-plating. The Cabinet Office notes that recourse to e-certis should therefore only be introduced before the final permissible dates if there is a clear 1(5) The Cabinet Office is proposing to transpose this provision and therefore postpone the imposition of the requirement. Page 20 of 22

22 deadline for transposition of the directive in national law. net benefit in doing so. This would not however preclude the earlier use of e-certis by individual contracting authorities, nor would it preclude a policy to use e-certis. Page 21 of 22