15 September 2015 #Public Procurement
On 26th February 2015 the Public Contracts Regulations 2015 (SI 2015/102) (“the Regulations”) were published. They implemented the EU Public Sector Procurement Directive 2014/24/EU which was brought in with the intention of simplifying the existing regime, providing additional flexibility for contracting authorities, and codifying recent European case law.
A substantial proportion of the provisions in the Regulations came into force on 26th February 2015 and 1 April 2015. However, there are some key exceptions which are set out in Regulation 1.
We have set out below, as an aide memoir, the key parts of the Regulations yet to come into force. A series of articles will follow on some of the key changes brought in by the Regulations.
A word of warning!
The Regulations should only apply from the date they are given statutory effect – so generally to procurement processes commenced on or after 26 February 2015. However in a recent case of Edenred (Group UK) Limited – v – Her Majesty’s Treasury and others (2015) the Supreme Court had regard to the Regulations as an aide to interpretation of whether changes to a contract were permitted under the Public Contracts Regulations 2006 (“the Old Regulations”). So even though the procurement commenced under the Old Regulations and the case was instigated under the Old Regulations, the Court considered the new Regulations when determining the issue.
The key parts of the Regulations yet to come into force are as follows:
a) Regulation 22 (1) to (7) applies with effect from 26 February 2015:
b) With effect from 18th April 2017 all procurement procedures run by central purchasing bodies must be conducted electronically and so regulation 22 (1) – (7) will be effective in those circumstances from that date; and
c) For all other purposes (including the requirement on other contracting authorities to use electronic communications in all procurement processes) the Regulation is effective from 18 October 2018.
Regulation 61, which provides that recourse shall be had to e-Certis, the European Commission’s online repository for certificates and other forms of documentary evidence, comes into force on 18th October 2018.
Keep an eye out for future updates on specific parts of the Regulations.
Kirstin Parker and Stanley Kamalu