National Procurement Guidelines

[Bartley Trowbridge]

Publicsector procurement is subject to a legal framework which encourages free and open competition and value for money, in line with internationally and nationally agreed obligations and regulations. As part of its strategy, the government aligns procurement policies with this legal framework, as well as with its wider policy objectives.

In addition to these fundamental treaty principles, some general principles of law have emerged from the case law of the European Court of Justice. The most important of these general principles of law for you to be aware of in the procurement context are:

Since the 1970s, the EU has adopted legislation to ensure that the EU public procurement market is open and competitive and that suppliers are treated equally and fairly. The rules cover aspects such as advertising of contracts, procedures for assessing company credentials, awarding the contracts and remedies (penalties) when these rules are breached.

The EU rules are contained in a series of directives that are updated from time to time. Member states have to make national legislation (regulations) to implement the EU rules in domestic law by certain deadlines. The most recent update of the EU procurement directives was in April 2014. This followed a successful lobbying campaign by the UK government and our EU partners to negotiate a simpler, more flexible regime of procurement rules. Member states then had 2 years to implement these in national law i.e. by April 2016.

Once the 2014 EU Procurement Directives came into force, the government prioritised the Public Contracts Directive for early implementation because it would deregulate and simplify the rules for where most procurement spend and activity takes place.

The changes enable buyers to run procurements faster, with less red tape, and with a greater focus on getting the right supplier and best tender in accordance with sound commercial practice. The implementation of the Public Contracts Regulations 2015 took effect from 26 February 2015.

Above set financial thresholds, if you are buying supplies, services or works for central government, a non-ministerial department, executive agency, or non-departmental public body, you must follow the procedures laid down in the Public Contracts Regulations before awarding a contract to suppliers.

Procurement for wider public sector bodies, such as local government, health and education, is also subject to the Public Contracts Regulations. However, the threshold contract values for goods and services is higher as explained in Procurement Policy Note 04/17.

The Public Contract Regulations 2015 also include a requirement for contracting authorities to have regard to CCS guidance on the selection of suppliers and the award of contracts, and to ensure that suppliers pay their subcontractors within 30 days as is already required of contracting authorities.

To help raise awareness of the new EU Procurement Directives, CCS also arranged more than 200 face-to-face training sessions on the main changes in the directives for people working in the public sector. Read the training materials from these sessions.

To help raise awareness of these new procurement rules, CCS also arranged face-to-face training sessions on the main changes in this directive for people working in the utilities sector. Read the training materials from the utilities sessions.

These regulations provide rules for the award of concession contracts above certain financial thresholds by public authorities and utilities. The thresholds for Concessions are different to the Public and Utilities thresholds, further information on Concession thresholds can be found in Procurement Policy Note 04/16.

The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 make consequential amendments to other legislation, including the Public Services (Social Value) Act 2012. This should be read together with The Public Contracts Regulations 2015, The Utilities Contracts Regulations 2016 and The Concession Contracts Regulations 2016.

All handbooks, guidance documents and training materials for the Public Contracts Regulations, Utilities Contracts Regulations and Concession Contracts Regulations can be found on the EU procurement directives and the UK regulations guidance page.

When a tender process is not subject to the Public Contracts Regulations (or Defence and Security Public Contracts Regulations) because the estimated value of a contract falls below the relevant threshold, you must continue to apply the principles of non-discrimination, equal treatment, transparency, mutual recognition and proportionality.

Where you consider that a contract is likely to attract cross-border interest you must publish a sufficiently accessible advertisement to ensure that suppliers in other member states can have access to appropriate information before awarding the contract. This is in line with the UK objective of achieving value for money in all public procurements, not just those covered by the Public Contracts Regulations.

abolition of a pre-qualification stage for procurements below the EU thresholds, and a requirement to have regard to guidance on qualitative selection issued by Cabinet Office for above EU threshold procurements

Small Business Enterprise and Employment (SBEE) Act 2015: you should be aware of section 39 of the act which gives the Minister for the Cabinet Office (MCO) the ability to implement secondary legislation imposing duties on public procurers in relation to procurement matters. Under Section 40 in-scope public contracting authorities must co-operate with any investigation of their procurement practises carried out on behalf of MCO.

The Late Payment of Commercial Debts Regulations 2013: amended late payment legislation came into force on 16 March 2013, implementing European Directive 2011/7/EU on combating late payment in commercial transactions. It aims to make pursuing payment a simpler process across the EU, reducing the culture of paying late and making payment on time the norm.

Energy Efficiency Directive Article 6: article 6 of the directive requires central government departments in EU member states to purchase highly energy efficient products, services and buildings, as set out in Annex III of the directive. This is a qualified duty and you do not have to buy the default product, service or building where this is not cost effective or does not allow effective competition. There is a secondary requirement to encourage other public bodies including local and regional government to follow the example of central government.

Public Services (Social Value) Act 2012: the act requires that at the pre-procurement stage you consider how what is to be procured may improve the social, environmental and economic well-being of the area in which the contract will be applied, how it might secure any such improvement and to consider the need to consult.

The Local Government (Transparency Requirements) (England) Regulations 2015This legislation requires the information, including information about public contracts, in Part 2 of the Local Government Transparency Code 2015 to be published in the manner and form and on the occasions specified. Responsibility for this legislation and Code lies with the Department for Communities and Local Government.

To support this, CCS was established to provide end-to-end purchasing services and departments were to transition spend on common goods and services to these arrangements. If your department has not yet transitioned to the CCS managed service, you can use the self service options to buy a variety of commonly used goods and services.

Central government buyers must follow the policy on selection of procurement processes that accompany the Procurement Route Decision Tree. There is a strong preference for the Open Procedure and this should be the normal default choice for government procurement. The Restricted Procedure should only be used where there is a genuine need to pre-qualify bidders or where there is evidence that (after effective pre-procurement market engagement) the market, and therefore the number of potential bidders, is very large.

The Decision Tree notes some distinction between the suitability of the two procedures for more complex procurements. In particular, the Competitive Procedure with Negotiation offers an attractive new choice for those procurements where although some element of negotiation is needed, it is possible to specify a minimum requirement from the outset. However, the Competitive Dialogue now provides for clarification and optimisation after the final call for tenders and has no minimum requirement at the outset, making it much better for highly complex outcome based procurements.

Central government buyers are required to operate an open door for current and potential providers to discuss upcoming procurement opportunities, by making greater use of Prior Information Notices (OJEU) or speculative notices if they relate to a specific procurement or industry sector-specific market engagement activity, to promote early market engagement. All contracting authorities can make use of the following notices on Contracts Finder to advertise early engagement activities:

You should use outcome based specifications as much as possible. An output (or outcome) based specification focuses on the desired outputs of a service in business terms, rather than a detailed technical specification of how the service is to be provided. This allows providers scope to propose innovative solutions.

Once a requirement has been identified it is natural to try to imagine the solution. The problem with this is that you are limited by what is currently known or available to you. By specifying outcomes rather than a solution you allow room for innovation to create new and better options.

References are important for suppliers, especially for small businesses seeking to grow their business. It is recommended that you accept requests for references, especially if the supplier has performed well and/or has exceeded expectations, noting that there is no legal impediment to providing references but any opinions offered must be backed by records.

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