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Government response to consultation on new procurement regulations

Government response to consultation on new procurement regulations

The government has recently released its response to a consultation on the new EU Procurement Directive which came into force on 17 April 2014. The consultation related to the Public Contracts Regulations 2015 which implement the Directive, and which, for the most part, come into force on 26 February 2015.

The Responses to the consultation came from a variety of bodies, industries and sectors including central government, local government, devolved administrations, education, business and the third sector. We pick out below some of the key conclusions from the consultation.

Implementation policy

The government has taken a pragmatic approach to implementing the Directive, adopting a "copy out" policy. This is a welcome approach that keeps the Regulations close to the Directive, avoids "gold plating" the UK regime and will speed adoption by relevant stakeholders. The early implementation date of 26 February is also welcome as it will allow stakeholders to take advantage of new flexibilities in the Directive as soon as possible.

Transitional arrangements will be that the new rules only apply to new procurement processes beginning after the Regulations have come into force. This provides useful certainty, is in keeping with previous transpositions and is a principle which has been recognised by the courts.

Lots

The Directive gives member states the option to require contracting authorities to prescribe circumstances when contracts must be split into smaller lots through state-specific legislation. The government has decided not to use this option. This is good news from a contracting authority's perspective, not expanding the technical grounds of challenge (that the circumstances existed which required a procurement to be split into smaller sections) in an already highly prescribed process. However contracting authorities should note that it will remain their responsibility to consider whether contracts should be split into lots and give reasons if this is not done.

e-procurement

One exception to the imminent implementation of the Regulations is in relation to e-procurement. The government proposes to delay implementation of the Directive's mandatory e-procurement requirements until the latest possible date. While this decision has received criticism for delaying the benefits of e-procurement (particularly in relation to bid costs), the delay will enable contracting authorities and suppliers to better prepare for mandatory usage, reducing the risk of breach.

Light touch regime

Procurements of certain health, educational, community and cultural services are not to be subject to the full procurement regime. Instead member states are to implement a light touch regime for these services. The government is adopting a minimalist approach to implementing the light touch regime with the primary focus being compliance with the principles of transparency and equal treatment of economic operators. The minimalist approach to implementation gives contracting authorities maximum flexibility in procuring these services and the government intends to produce further guidance to assist stakeholders in the operation of the light touch regime.

The consultation response and the new Regulations which come into force shortly give a clear and welcome indication of the government's practical attitude towards bringing the Directive into force.

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