A Guided Tour of the Public Contracts Regulations 2015 PowerPoint Presentation, PPT - DocSlides

A Guided Tour of the Public Contracts Regulations 2015 PowerPoint Presentation, PPT - DocSlides

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Gayle Monk. 20. th. April 2015. What will we cover? . A look at some of the key changes and new rules in the Public Contracts Regulations 2015 focussing on:. New procedures, and changes to existing ones. ID: 271656

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Presentations text content in A Guided Tour of the Public Contracts Regulations 2015

Slide1

A Guided Tour of the Public Contracts Regulations 2015

Gayle Monk

20

th

April 2015

Slide2

What will we cover?

A look at some of the key changes and new rules in the Public Contracts Regulations 2015 focussing on:

New procedures, and changes to existing ones

Lots and how they are used

Changes

to the exclusion and selection processes

Changes

to contract award and evaluation criteria

Pre-market consultation

The different rules for social and other services – the “light touch regime”

“Reserved” contracts

Treatment of subcontractors

Part 4 and the Young Reforms

Slide3

New procedures and changes to existing onesWhat does the process look like? Procedures (Regs 26 & 29-31)

Open and restricted procedures remain largely unchanged

Competitive procedure with negotiation

” (CPN) and “

competitive dialogue

” (CD) now both available where:

requirements “

cannot be met without the adaption of readily available solutions

contract “

includes design or innovative solutions

”; or

contract cannot be awarded without negotiations because of specific circumstances related to “

complexity, legal or financial make-up or risk”

Innovation partnership (IP)

covers initial product development and subsequent purchases

tendered procedure – similar to CPN

Slide4

Open & restricted procedures – minimum timescales (Regs 27, 28, 47)

ProcedureSituationPQQTendersOpennormal N/A35 days*with PINN/A15 daysacceleratedN/A15 daysRestrictednormal30 days30 days* (except central government)with PIN30 days10 daysaccelerated15 days10 days

*

5

days less if tenders submitted by electronic means

Accelerated procedure available where:

state of urgency “

duly substantiated by the contracting authority

makes normal time limits “

impracticable

Time limits must be sufficient to complete PQQs/tender (Reg 47)

Slide5

Lots and contract limits (Reg 46)

Can limit the number of lots a tenderer can:bid for; and/or winMaximum number must be stated in OJEU noticeHow lot contracts are awarded to bidders who “win” more than the maximum number of lots:criteria must be “objective and non-discriminatory” i.e. cannot simply “let contractor choose”Contracting authority can choose to combine several (or all) lots in these circumstances as well provided they state this up front. Small lots rule remains the same.

Divide or explain

Client

must justify decision not to break down contracts into separate lots

J

ustification must be set

out in the procurement

documents or the client’s procurement record

Slide6

Being Ready - Procurement documents & e-tenders (Regs 2 & 53)

Online availability of procurement documents including:Contract, specification, cost modelITT, tender submission requirements and “additional documents”Compulsory e-tendering & communications From 18 April 2018 (buying clubs 2017)Data integrity system requirements (e.g. no access to tenders until after deadline)Must document verbal communications impacting on tender submission or evaluation

Contracting authorities shall

by means of the internet, offer

unrestricted and full direct access

free

of charge to the procurement documents from the date of publication

[of

the OJEU

notice]”

Reg 53(1

)

Slide7

Contractor reliability- prequalification (Regs 56-65)

New standard PQQ mandated by the Crown Commercial ServiceNew terminology Reg 58 - minimum standardsTo prequalify “suitable” bidders Pass/fail questionsCalled “selection criteria” Reg 65 - tender list selectionCan limit the number of bidders “meeting the selection criteria” that are invited to tender Scored questions“Invitation criteria”?

European Single Procurement Document

Self-declaration of compliance

Standard form from Commission

“Verified” just before contract award

Challenge risk if “untrue” and rejected

Slide8

Exclusion (Regs 24 & 57)

New exclusion grounds “Significant or persistent deficiencies in the performance of prior public contract which led to early termination, damages or other comparable sanctions”Conflicts of interest, collusion, breaches of environmental or employment law etc.“Self-cleaning” provisions “Active collaboration”, compensation & “active measures” to prevent recurrenceDefault exclusion period - 3 years (for discretionary exclusion) or 5 years (for monthly exclusion)Reflected in the standard PQQ

Exclusion for previous contract delivery problems

Problems must have been “significant” or “persistent”

Must be on a prior public contract

Deficiencies must have led to “early termination, damages or other comparable sanctions” – would not apply if termination was under a “break clause”

Slide9

Selection - financial (Regs 56, 58 & 60)

Economic and financial standing information Bank reference & insurance detailsPublished accounts and turnover statementGroup company infoImpact No use of credit reference agenciesNeed to identify “special risks” if using higher minimum turnoverProtections may be sought instead (e.g. payment in arrears, performance bond, retention)

Financial

Annual turnover no more than 2 times contract value unless “special risks”

Minimum turnover in “area” (of work) covered by the contract unless “special risks”

Financial ratios

Minimum insurances

Slide10

Selection – technical (Regs 56, 58 & 60)

References

Can be used only to establish a “sufficient level of experience”

Express ability to exclude for poor performance may limit the opportunity to regard this as part of technical ability

Information that can be requested:

subcontracting proportions

List

of previous contracts - 5 years works or 3 years services/supplies

Technicians

, technical facilities and workforce & managerial staff

Supply

chain management & tracking systems (

new)

Educational

& professional

qualifications

Environmental

management

Average

annual manpower

Tools

, plant, technical

equipment

Quality

assurance certificates

Slide11

Implied contract terms (Reg 73)

Compulsory termination Implied into contract if not includedBut implied terms may not deal with timing and consequences of termination30 day payment termsApply if invoice “undisputed”“Undue delay” in “verifying invoices” is no excuseMust be cascaded down supply chain

Must terminate if:

European Court decides serious breach of Treaty / EU Directives

substantial change occurscontractor should have been disqualified (mandatory exclusion)

Compulsory termination

Slide12

Contract Award Criteria (Regs 67 and 68)

MEAT

Identified on the basis of price or cost using a cost effectiveness approach

Best price-quality ratio

Can include environmental/social aspects

Linked to the subject matter of the contract

Where the cost element takes the form of a fixed price or cost bidders can compete on quality criteria only

LIFE-CYCLE COSTING

This must be stated in the procurement documents if used

Objective and non discriminatory

Accessible

Slide13

Pre-Market Consultations (Reg 40)

Preliminary market consultations

40.—(1) Before commencing a procurement procedure, contracting authorities may conduct market consultations with a view to preparing the procurement and informing economic operators of their procurement plans and requirements.

(2) For this purpose, contracting authorities may, for example, seek or accept advice from independent experts or authorities or from market participants.

(3) Such advice may be used in the planning and conduct of the procurement procedure, provided that it does not have the effect of distorting competition and does not result in a violation of the principles of non-discrimination and transparency.

Slide14

Light touch regime for some services contracts (Regs 74 to 76)

New light touch regime for certain services:health and social serviceslegal serviceseducational services (but not training)Over the threshold of €750,000 (£625,050)“Other services” (residual category) will now be fully regulatede.g. grounds maintenanceCrown Commercial Service guidance

Some services now subject to “full” tendering regime

Grounds maintenance

Agency staff (other than in care or health sectors)

Rail transport

Slide15

Schedule 3

(CPV

Code)

Description

Supply

services of domestic help personnel, supply services of nursing personnel and supply services of medical personnel. Private households with employed persons and manpower services for households, agency staff services for households, clerical staff services for households, temporary staff for households, home-help services and domestic services.

Health,

social and related services

Administrative

, defence and social security services; educational and training services, exhibition, fair and congress organisational services, seminar organisation services, event services, cultural event organisation services, festival organisation services, party organisation services, fashion shows organisation services and fair and exhibition organisation services.

Administrative

social, educational, healthcare and cultural services

Compulsory

social security services

Benefit services

Other community,

social and personal services including services furnished by trade unions, political organisations, youth associations and other membership organisation services

Religious services

Catering

services for private households, meals-on-wheels services, meal delivery service, catering services, catering services for transport enterprises, catering services for other enterprises or other institutions, school catering services, canteen services, canteen and other restricted-clientele cafeteria services, canteen management services and school-meal services

Hotel and restaurant services

Slide16

Schedule 3

(CPV

Code)

Description

Legal

services, to the extent not excluded by Regulation 10 (1)(d)

Other administrative

services and government services

Provision

of services to the community

Prison

related services, public security and rescue services to the extent not excluded by regulation 10(1)(h)

Investigation and security services,

security services, alarm-monitoring services, guard services, surveillance services, tracing system services, absconder-tracing services, patrol services, identification badge release services, investigation services and detective agency services, graphology services and waste analysis services.

Investigation

and security services

Services provided by extra-territorial organisations and bodies

and Services specific to international organisations and bodies

International

services

Postal and telecommunications

services, post and courier services, postal services, postal services related to newspapers and periodicals, postal services related to letters, postal services related to parcels, post office counter services, mailbox rental, post-restante services, Internal office mail and messenger services.

Postal

services

Miscellaneous services

Slide17

Light Touch Regime (Regs 74 to 76)

Publication of notices

Must publish a contract notice or a PIN to start the procedure, which should include details concerning:

Conditions for participation;

Time limits for contacting the contracting authority;

The award procedure to be applied.

Must publish a contract award notice at the end of the procedure but can “group”

CANs

quarterly

Slide18

Principles of awarding contractsProcedures to be determined by the contracting authorityMust be at least sufficient to ensure transparency and equal treatmentMay deviate from the information given in the contract notice or PIN but only if:Doing so doesn’t breach transparency and equal treatment;Contracting authority has duly considered the matter, documented its conclusions and informed participants;Time limits must be reasonable and proportionate;Can follow procedures that correspond with the “normal” procedures

Light Touch Regime (

Regs

74 to 76)

Slide19

Principles of awarding contractsContracting authorities may take into account any relevant considerations when awarding the contract, including:(a) the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services;(b) the specific needs of different categories of users, including disadvantaged and vulnerable groups;(c) the involvement and empowerment of users; and(d) innovation.

Light Touch Regime (

Regs

74 to 76)

Slide20

Reserved contracts – supported businesses (Reg 20)

Contracting authorities may reserve (ring-fence) competition for contracts to:

Sheltered workshops

Economic operators whose main aim is the social and professional integration of disabled or disadvantaged persons

Or may provide for the contract to be performed in sheltered employment programmes.

At least 30% of the workforce of the economic operator must be disabled or disadvantaged workers.

Slide21

Reserved Contracts – public service mutual organisations (Reg 77)

Contracting authorities may also reserve contracts for certain services to “qualifying organisations” which fulfil the following conditions:

Objectives are the pursuit of a public service mission linked to the delivery of the services;

Profits are reinvested with a view to achieving that objective; any distribution of profit is based on participatory considerations;

Management or ownership structures are based on employee ownership or participation, or require the active participation of employees, users or stakeholders.

The organisation must not have been awarded a contract under

Reg

77 by the contracting authority in the preceding 3 years.

Contract is for a maximum of 3 years.

Slide22

Services that can be “reserved”

75121000-0

Administrative educational services

75122000-7

Administrative healthcare services

75123000-4

Administrative housing services

79622000-0

Supply services of domestic help personnel

79624000-4

Supply services of nursing personnel

79625000-1

Supply services of medical personnel

80110000-8

Pre-school education services

80300000-7

Higher education services

80420000-4

E-learning services

80430000-7

Adult-education services at university level

80511000-9

Staff training services

80520000-5

Training facilities

80590000-6

Tutorial services

85000000-9 – 85323000-9

85000000-9 – Health and social work services

85100000-0 – 85172000-5 – Health services

85200000-1 – 85210000-3 –Veterinary services

8530000-2 – 85323000-9 – Social work and related services

92500000-6

Library, archives, museums and other cultural services

92600000-7

Sporting services

98133000-4

Services furnished by social membership organisations

98133110-8

Services provided by youth associations

Slide23

Subcontracting arrangements

Contracting authority can ask tenderers to indicate any share of the contract they intend to subcontract and any proposed subcontractorsWithout prejudice to the main contractor’s liabilityFor works contracts (and services at a facility under the direct oversight of the client) the contracting authority must:require from the main contractor the names, contact details and legal representatives of its subcontractorsRequire the main contractor to notify it of any changes, including any new subcontractorsProvisions may be extended down the supply chain at the contracting authority’s discretionMandatory exclusion can be extended to subcontractors

Regulation 71 (Subcontracting)

Slide24

Part 4 and the Young Reforms

Ostensibly about making procurement opportunities more accessible to smaller businesses and voluntary organisations

See CCS PPN 03/15

CCS guidance on

PQQs

CCS Standardised PQQ

Not applicable to

:

NHS bodies (at the moment)

Academies and maintained schools

Slide25

Part 4 Using Contracts Finder “where contract notices are used” – Regulation 106

“Where a contracting authority sends a

contract notice

…..”

Information to be published – Regulation 106(2) (advertisement)

Have regard to Cabinet Office

Guidance

When does a contracting

authority

identify an opportunity? – see Regulation 110(5)

Slide26

Below Threshold Procurement – Regs 109 - 111

Apply to contracts between £25,000 and the threshold for services (£172,215) – whether for works, supplies, services or “light touch regime” services

Contracts Finder:

Where the contracting authority advertises a contract award opportunity

Not

where the contracting authority makes an opportunity available to only a number of particular economic operators selected for that purpose (whether ad hoc or under a framework agreement)

PQQs:

Contracting authority cannot

use

one between those thresholds

e.g. for light touch regime you can use PQQs if above £172,215

Slide27

Contract Awards – publication of information on Contracts Finder – Regs 108 and 112

If you publish a contract award notice (above threshold contract): Contractor, date, value (Reg 108)

For below threshold contracts: Contractor, date, value, whether contractor is an SME or VCSE (Reg 112)

VCSE is “a non-governmental organisation that is value-driven and which principally reinvests its surpluses to further social, environmental and cultural objectives”.

Slide28

PQQs - Regulation 111 – below threshold

No PQQ stage in procurement for below threshold contracts (at

services

level for all procurements)

But, in any event, contracting authorities can ask suitability assessment questions!

“Suitability assessment questions” means …

“a question which relates to information or evidence which the contracting authority requires for

the

purpose of assessing whether candidates meet minimum standards of suitability, capability, legal status or financial standing.”

Have regard to Cabinet Office guidance

Reportable deviation

Slide29

PQQs - Regulation 107 – above threshold

Have regard to guidance about qualitative selection, which says:

Only use the standard PQQ or otherwise PAS91 for public works contracts above threshold

Technical and Professional Ability – Paragraph 8 of the CCS Guidance

“Contracting authorities are permitted to ask further project specific questions …. as part of selection.”

Is silent on

:

Works contracts between the threshold for services and the threshold for works

Light touch regime services between the €207,000 and €750,000.

Slide30

Payment of undisputed invoices (Reg 113)

Payment within 30 days by contracting authorities, contractors and subcontractors:

Except

for health and schools/academies

Mandatory provisions in contract conditions

Publication of payment record

Slide31

Validity of contracts (Reg 114)

A

material failure to comply with any requirement of this Part does not, of itself, affect the validity of a public contract that has been entered into.

Slide32

Questions

News and legal updates:

www.anthonycollings.com/news-and-events/briefings.aspx

Advice:

Mark.Cook@anthonycollins.com

Gayle.Monk@anthonycollins.com

Slide33

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