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Private & Confidential. Not for distribution. ©DWF LLP 2013 www.dwf.co.uk Go further Title needs degree sign (°) added from the “Insert/Symbol” menu. This.

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Presentation on theme: "Private & Confidential. Not for distribution. ©DWF LLP 2013 www.dwf.co.uk Go further Title needs degree sign (°) added from the “Insert/Symbol” menu. This."— Presentation transcript:

1 Private & Confidential. Not for distribution. ©DWF LLP Go further Title needs degree sign (°) added from the “Insert/Symbol” menu. This needs to be added at 28pt compared to the 24pt title. The EU Modernisation Package on Procurement° Jonathan Branton May 2014

2 Private & Confidential. Not for distribution. ©DWF LLP A glimpse into the future…….. Underlying requirements - simplification and flexible procurement (but what will that really mean in practice)? Europe 2020 strategy – smart sustainable and inclusive growth Package of legislative proposals (public sector, utilities, concessions) Formally adopted on 15 January 2014 Implementation into national law within 2 years (NB. UK Cabinet Office has ambitious plans for early transposition, so that advantage can be taken of some additional flexibilities) 2 Do we need new rules on public procurement ?

3 Private & Confidential. Not for distribution. ©DWF LLP Looking at the key changes More freedom to negotiate – where requirements are not “off the shelf” Distinction between Part A and B services removed For CA’s other than central government, PIN can be used in place of individual adverts for contracts using restricted and competitive procedure with negotiation New higher threshold and lighter regime for social, health, educational services (NB. Threshold of EUR 750k) Legal clarity that CA’s can take account of relevant skills and experience of individuals at award stage (services, consultants, architects, lawyers etc.) Social as well as environmental criteria –Use of labels with specific environmental, social or other characteristics –But very specific requirements (must be linked to the subject matter of the contract, label requirements based on objectively verifiable and non discriminatory criteria, open transparent procedure involving all relevant stakeholders, labels accessible to all etc.)

4 Private & Confidential. Not for distribution. ©DWF LLP Looking at the key changes Time limits on response times have been reduced by about a third (expressions of interest and tender deadlines) Ability to reserve the award of certain services to mutuals or social enterprises for a limited time limit (typically for outsourcing situations) –This exception was strongly advocated by the UK, seeing it as a halfway house between in house provision and full competitive outsourcing. Codify Teckal (in house exemption)/Hamburg Waste (public sector collaboration) Codify Pressetext (changes to contracts) Electronic communication / e-procurement will become mandatory following years after the directive’s adoption

5 Private & Confidential. Not for distribution. ©DWF LLP Improvements to exclusion grounds Poor performance under previous contacts will be permitted as a ground for discretionary exclusion – how to measure? Where the CA has sufficiently plausible indications that economic operator entered into agreements with other economic operators aimed at distorting competition (price fixing, bid rigging) Where there are no less intrusive measures (ie. discretionary exclusion as last resort) to remedy: –a conflict of interest –a distortion of competition arising from the prior involvement of the economic operator in the preparation of the procurement procedure

6 Private & Confidential. Not for distribution. ©DWF LLP Safeguard measures Corruption - improved measures to counter –Conflicts of interest –Illegal attempts to influence the decision making process –Undue preference in favour of those who advise the CA or involved in the preparation of tenders Self-cleaning –Dealing with economic operators who have mended their ways (or not) –If measures considered insufficient and exclusion to continue, a statement of reasons must be provided –Maximum periods of exclusion must be specified by Member States. Where the period of exclusion is not set by final judgment, it should not exceed 5 years for mandatory exclusions and 3 years for discretionary exclusions

7 Private & Confidential. Not for distribution. ©DWF LLP Measures aimed at assisting participation by SMEs Focus on SMEs as engine for growth in EU Buyers encouraged to break contracts into lots (but discretion where not justified) –CAs may limit the number of lots that can be awarded to one tenderer provided maximum number of lots per tender is stated in OJEU notice/procurement documents –Objective and non discriminatory criteria/rules to determine how evaluation will be carried out, to be provided in advance –Member States have possibility to make it obligatory to split contracts into lots Turnover cap introduced to facilitate SME participation – general rule is that CA’s cannot set turnover requirements at more than twice contract value Self declarations “European Single Procurement Document” to be introduced allowing self certification that no grounds for exclusion apply and selection criteria met 7

8 Private & Confidential. Not for distribution. ©DWF LLP ERDF Procurement Thresholds & action required Estimated Value of Goods or ServicesAction Required Below £20,000Sufficient degree of advertising; but likely not to affect Internal Market. Consider using their own website or a portal such as ‘contracts finder’. VFM must be demonstrated by requesting or obtaining 3 quotes or prices but this need not be done through a formal competition. £20,001 to OJEU thresholdThe level of advertising must be sufficient to allow a level of competition, potentially from another member state (if the contract award might be of interest to suppliers located in other Member States and depending on other factors eg geographical location). Formal invitation to tender process must be followed and the requirement advertised in the press and/or on the internet for a minimum of 10 days to enable fair competition. Over OJEU thresholdGoods/Part A Services Full advertisement in OJEU of a fully-compliant open/negotiated or other regulated process Part B Services – the lighter-touch regime specified in the Regulations Value of Works Action Required Below £429,999Sufficient degree of advertising; but likely not to affect Internal Market. Consider using their own website or a portal such as ‘contracts finder’. VFM must be demonstrated by obtaining or requesting 3 quotes or prices but this need not be done through a formal competition. Over £430,000The level of advertising must be sufficient to allow a level of competition, potentially from another member state (if the contract award might be of interest to suppliers located in other Member States and depending on other factors, eg geographical location). Formal invitation to tender process must be followed and the requirement advertised in the press and/or on the internet. Over OJEU thresholdFull advertisement in OJEU of a fully-compliant open/negotiated or other regulated process 8 “National Procurement Requirements” ERDF-GN (https://www.gov.uk/erdf-national-guidance)

9 Private & Confidential. Not for distribution. ©DWF LLP Separate new regime for works and services concessions (public sector and utilities) Threshold EUR 5m OJEU notice required No set procurement procedure but general principles of equal treatment and non-discrimination apply Social and environmental considerations can be taken into account Specific rules on what is regarded as a material change to the contract requiring a retender Some specific exclusions (e.g. the water sector, lottery services awarded on the basis of an exclusive right) Usual remedies must be made available Concessions 9

10 Private & Confidential. Not for distribution. ©DWF LLP Our People 10 Jonathan Branton Partner Head of Central and Local Government

11 Private & Confidential. Not for distribution. ©DWF LLP Our firm is driven by its core Values which focus on: 11 Values Our ClientsOur PeopleOur CommunityOur Environment

12 DWF is the business law firm with industry insight. Our legal experts combine real commercial understanding and deep sector knowledge to help clients anticipate issues, create opportunities and get the outcomes they need. We’ll deliver the results that help you go in the right direction – wherever you are. Go further ° ©DWF LLP 2013 DWF LLP is a limited partnership registered in England and Wales with registered number OC The content of the Regulatory and Licensing Insert does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances. Birmingham +44 (0) Edinburgh +44 (0) Liverpool +44 (0) Newcastle +44 (0) Bristol +44 (0) Glasgow +44 (0) London +44 (0) Preston +44 (0) Dublin +353 (0) Leeds +44 (0) Manchester +44 (0)


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