Procurement Law Proposed EU Directives Paul James, Eversheds LLP SOPO Conference, 12 November 2012

Public Directive key changes Abolition of part B services except –social, health, rescue, prison and education services “services to the person” –rescue, firefighting and prison services –hotel and restaurant services –legal services subject to “light touch” regime €500,000 threshold and compliance with transparency/ equal treatment

Public Directive key changes Lighter regime for “sub central” bodies (non GPA bodies so not central govt and NHS) –agree shorter time limits with bidders (as low as 10 days for ITT) –annual notices can replace specific OJEU notices Exclusions for certain services contracts including radio media services, arbitration, conciliation and raising capital

Public Directive key changes Procedural choice –negotiated procedure and competitive dialogue both selectable –negotiated procedure rules on confidentiality, selection, use of BAFO –CD to allow negotiation of terms post selection, provided it does not materially amend essential parts of procurement and does not risk distorting competition or causing discrimination

Public Directive key changes New “Innovation Partnership” under negotiated procedure for “establishing a structured partnership for the development of innovative product, service or works and the subsequent purchase of the resulting supplies, services or works” can be with one partner or several partners conducting separate research and development activities

Public Directive key changes * timings in brackets apply if electronic notice/ documents ProcedureNowProposed Open52 (45) days to tender days if valid PIN 35 (30) days 15 days Restricted37(30) days for PQQ 40(35) days to tender days to tender if valid PIN 30(25) days 30(25 days 10 days Negotiated37(30) days for PQQ No time limits for tender 30 days CD37(30) days for PQQ30 days

Public Directive key changes Express provisions on the Teckal exemption –at least 85% of activity for the owners (turnover for services in last three years will be considered) –no private participation –multi-party owners acceptable if co-operative, cost reimbursement only and in the public interest and participating contracting authorities do not perform more than 15% of activities

Public Directive key changes Express provision on “substantial modifications” Modification substantial if above relevant threshold and 10% of original contract value but not if –a diligent authority could not foresee it and –does not alter the overall nature of the procurement and –price increase not over 50% of original contract value Electronic procurement pushed further –all OJEU notices, specifications and supporting documents electronic within 2 year transition –CPBs must be fully electronic

Public Directive key changes SME encouraging provisions including –explanation of why not sub-dividing contracts >€500,000 into lots –self declaration in PQQs rather than full information disclosure –no re-submission of info to the same authority if sent in last 4 years and still valid –no min turnover requirements over 3x contract value unless exceptional circumstances

Utilities Directive additional points “Special and exclusive rights” don’t arise if granted through a transparent/objective process Oil/gas exploration utilities no longer covered Innovation partnership introduced but not competitive dialogue Limiting frameworks to 4 years “Activities directly exposed to competition” exemption simplified (Article 30 exemptions) Affiliated undertaking/joint venture exemption –Teckal style exemption included if >90% for the utility –affiliates under dominant influence and 80% of turnover for the affiliate

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