New draft Procurement Regulations published

On Friday 19 September 2014, the Cabinet Office launched a consultation on the long awaited draft procurement regulations for the public sector in England, Wales and Northern Ireland.

The consultation period is only four weeks and closes on 17 October 2014.

The Consultation Document includes 20 consultation questions with a short explanation of each of the questions.

The draft Public Contracts Regulations 2015 are at Annex A.  Once in force, they will replace the current Public Contracts Regulations 2006.

The draft  Regulations use a “copy out” approach to the transposition of the provisions of Directive 2014/24/EU which means that they follow the language, layout and numbering in the Directive as closely as possible. This approach, together with other helpful information on drafting, is explained in the Technical Note on Drafting which accompanies the draft Regulations.

A few of the provisions in the Directive are optional and so Member States have a choice on whether and/or how to implement them. Annex B explains the approach which has been adopted in relation to these optional provisions.

The draft Regulations contain some additional provisions not contained in the Directive. These include:

• The “light touch” regime for health, social and other services:  Member States were required to put into place national rules covering the operation of the new “light touch” regime for health, social and other services above the €750,000 threshold.  The proposed national rules to apply in England, Wales and Northern Ireland are set out at draft Regulations 74 to 77.
• Below threshold contracts: draft Regulations 105 to 109 implement the reforms proposed by Lord Young aimed at increasing SME participation in procurement. These are not provisions required under the Directive. The principles now incorporated in the draft Regulations were subject to an earlier consultation process. Contracting authorities are required to advertise most contract opportunities and contract award information on Contracts Finder. The use of a pre-qualification stage for contracts below specified thresholds is abolished, whilst permitting a “suitability assessment” in some cases. 
• Other provisions: There are also provisions covering compliance with guidance on qualitative selection which may be issued by the Minister for the Cabinet Office and the payment of undisputed invoices within 30 days.

Commissioning/procurement of health care services for the purposes of the NHS: there are special provisions, including delayed implementation, in relation to the procurement of health care services for the purposes of the NHS which fall within the scope of the current NHS Regulations.*

The consultation document is available on the Cabinet Office website.

We will be issuing some more detailed notes on the draft Regulations in the near future.

*The National Health Service (Procurement, Patient Choice and Competition) No.2 Regulations 2013 (SI 2013/500).