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


A Guided Tour of the Public Contracts Regulations 2015

Gayle Monk



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

Lots and how they are used


to the exclusion and selection processes


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


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


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



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 “


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


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


must justify decision not to break down contracts into separate lots


ustification must be set

out in the procurement

documents or the client’s procurement record


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


of charge to the procurement documents from the date of publication


the OJEU


Reg 53(1



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


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”


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)


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


Selection – technical (Regs 56, 58 & 60)


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


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


, technical facilities and workforce & managerial staff


chain management & tracking systems (



& professional





annual manpower


, plant, technical



assurance certificates


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


Contract Award Criteria (Regs 67 and 68)


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


This must be stated in the procurement documents if used

Objective and non discriminatory



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.


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


Schedule 3





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.


social and related services


, 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.


social, educational, healthcare and cultural services


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


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


Schedule 3





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

Other administrative

services and government services


of services to the community


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.


and security services

Services provided by extra-territorial organisations and bodies

and Services specific to international organisations and bodies



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.



Miscellaneous services


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”




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 (


74 to 76)


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 (


74 to 76)


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.


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


77 by the contracting authority in the preceding 3 years.

Contract is for a maximum of 3 years.


Services that can be “reserved”


Administrative educational services


Administrative healthcare services


Administrative housing services


Supply services of domestic help personnel


Supply services of nursing personnel


Supply services of medical personnel


Pre-school education services


Higher education services


E-learning services


Adult-education services at university level


Staff training services


Training facilities


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


Library, archives, museums and other cultural services


Sporting services


Services furnished by social membership organisations


Services provided by youth associations


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)


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


CCS Standardised PQQ

Not applicable to


NHS bodies (at the moment)

Academies and maintained schools


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


When does a contracting


identify an opportunity? – see Regulation 110(5)


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


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)


Contracting authority cannot


one between those thresholds

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


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”.


PQQs - Regulation 111 – below threshold

No PQQ stage in procurement for below threshold contracts (at


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


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

Have regard to Cabinet Office guidance

Reportable deviation


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.


Payment of undisputed invoices (Reg 113)

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


for health and schools/academies

Mandatory provisions in contract conditions

Publication of payment record


Validity of contracts (Reg 114)


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.



News and legal updates:











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