Establishing and using frameworks David Hansom, Partner, London LUPC 1 April 2014

Transcription

1 Establishing and using frameworks David Hansom, Partner, London LUPC 1 April 2014

2 Scope of today s session In the next 40 minutes, we will cover What are framework agreements? Setting up frameworks Using frameworks Central Purchasing Bodies Common pitfalls and risk areas Changes in the new directives Questions and answers

3 What are frameworks? An agreement which sets up the base terms and conditions for goods, works or services Designed for particular requirement up to value estimated in OJEU One procurement to establish pricing and award mechanism Commonly used and very useful for routine / regular spend Four years is the maximum duration but call offs can exceed that length Can be longer if exceptional grounds

4 What are frameworks? There no minimum level of spend and no guarantee of work or exclusivity Ordering mechanism should be clear and set out in the buyer s guide Either set up your own or use another s Specific remedies issues more later

5 Advantages Speed and lower cost than bespoke Low procurement risk if call off run appropriately Certainty of supply Often regional/nationwide coverage Disadvantages Relatively short term relationships Closed market - contractors fixed Pricing can get stale quickly Limited scope to change terms and conditions Are you entitled to use it? What are frameworks?

6 Setting up Use Regulation 19 of the Regulations Can be done under all routes including competitive dialogue Either single supplier or multi party (must be three if multi party) Then follow one of 4 procurement processes OJEU notice (including Lots, estimated spend and named others) Pre Qualification Stage (minimum 5 if restricted procedure) Invitation to Tender with specification and terms Mandatory standstill period Award Contract Award Notice within 48 days

7 Framework agreements call off In practice, the trickier area Using and calling off EU guidance says call off either by direct award or mini competition In practice often a hybrid approach Crucial to follow the call off rules because of remedies issues

8 Single supplier direct award How to call off Easy go to supplier, ask if has capacity, if so place order under terms already established Multi party - either direct award or mini competition Multi party direct award can purchase be made on original terms? How do you make the decision?

9 Multi party direct award How to call off (2) Rotational listing, names out of a hat, resting contractors all seen in market Mechanism must be objective and not distort competition EU guidance always to the winner? If clear about needs at start then hard to see how later complaint could be successful if bidders buy into approach

10 How to call off (3) Multi party mini competition Follow the rules set out in your framework agreement Capability test as a first sift Use the same evaluation criteria as used to set up framework Risk assessment in practice

11 Framework ends shortly can we still use it? Yes if typical and not used to distort competition Some specific issues Do we run a standstill period on set up or call off? Must run on set up if over threshold Can run as optional step on call off to reduce remedies risk Can we add a new supplier later? No as a closed market between those that met the requirements in the original procurement

12 Collaborative Frameworks Can use a central purchasing body ( CPB ) or central government framework Are you entitled to use it? Lots say for all public sector It s your risk for call off Consider voluntary standstill for above threshold Do you need to be named in the tender advertisement? Strictly yes but wide variety of approaches If not, how can contract value be measured

13 Ineffectiveness risk Remedies issues on frameworks If framework set up ineffective, calls off not automatically cancelled Court must make separate orders 6 month window can be reduced to 30 days by writing follow up confirmation letter after award

14 Ineffectiveness risk Remedies issues on frameworks Above threshold call offs vulnerable to cancellation if limb (3) met Illegal direct award if you are not named/over spent? Breach in following the framework call off terms Can run voluntary standstill after call off If no challenge, cancellation risk goes after end of standstill Use for high value/strategic only?

15 All change later this year Some familiar The future Still 4 year general term but preamble suggests longer may be justifiable No substantial modifications to terms Need to be clear on which authorities can use Some new rules on frameworks Can mix direct award with mini competition Each lot can have a different mechanism Preamble says call offs can exceed framework

16 Questions and answers

17 David Hansom Partner DDI