Catching up on public procurement

publicprocurment

Almost a year after the Public Contracts Regulations 2015 came into force, what have been their practical experiences?

For those whose work is related to public procurement, February 26th, 2015, is a date etched firmly in their minds. That was, of course, the date when the Public Contracts Regulations 2015 came into force and began to apply to new public procurement competitions.

The objective of the new provisions is to clarify the rules, simplify the procedures and improve access for SMEs while still ensuring EU member states can secure high quality goods and services and deliver value for money.

The changes to the law were designed to allow for a more straightforward approach to the procurement process, making it faster and less costly for public bodies and private sector suppliers alike.

So, almost one year on, what have been the practical experiences of the Public Contracts Regulations 2015?

Insights

That was the theme of the annual procurement seminar hosted recently by leading law firm Arthur Cox, which has become the highlight of the procurement law calendar and was attended by over 100 delegates from a range of organisations.

Those in attendance included representatives from the Department for Regional Development, arc21, the Strategic Investment Board, Ernst & Young and the Northern Ireland Housing Executive.

William Curry, a Partner in the corporate and commercial team at Arthur Cox’s Belfast office, led a panel of five Arthur Cox experts who shared their insights on a range of hot topics.

James Flanagan, Associate at Arthur Cox, focused on recent Government guidance on the new Public Contracts Regulations 2015, while Adrian Kerr, also an Associate at the Belfast firm, spoke about NEC3 Contracting in public procurement. Aaron Boyle and Patrick McGovern, from Arthur Cox’s Dublin office, examined future proofing contracts and EU Directives in practice respectively.

The introduction of changes to the mandatory and discretionary exclusion criteria attracted attention from the time that the first draft of the new EU Directive was published – and this is an area which William addressed at the outset.

“The most significant change is the introduction of the new exclusion ground dealing with potential exclusion where an operator has shown persistent or significant deficiencies in the performance of a substantive requirement under a prior public contract, a prior contract with a contracting entity or a prior concession contract, which lead to the early termination of that prior contract, damages or other comparable sanctions,” said William.

“We’ve been helping clients through the outworkings in practice of this new provision, including how (and if) a contracting authority may apply the exclusion ground in circumstances where the contracting authority had terminated a contract it had with a contractor as it felt that the level of service was deficient.”

 

Helpful developments

Other areas highlighted by William included the new shorter minimum timeframes introduced for open and restricted procedures, the new implied termination clauses, the changes to selection and award criteria and the perennial issue of the modification of contracts.

While acknowledging that the full effects of some of the new provisions are still to be fully realised, and may well be subject to further judicial comment and interpretation, William summarised the experience to date of the new rules by saying:

“The new regulations have certainly led to a number of helpful developments for contracting authorities, including self-declarations, the shortening of timelines, the allowing of the assessing of award criteria before selection criteria in open procedures and the allowing of experience to be assessed at the award stage.

“These will help make life easier for contracting authorities, and bidders in some respects, although authorities will have to make sure procurement documents and procedures are updated to be consistent with the new rules and reflect the correct terminology and scope.”

Among the seminar guests was Ricky Burnett of waste management body arc21. He said: “I thought the seminar was very useful and it’s encouraging to know that lawyers are willing to share their insights on the latest developments in procurement law with clients. The sessions helped us think about how best to use the new provisions as a public authority.” 

Paul Forsythe, from the Education Authority in Belfast, said: “It was an extremely informative seminar and particularly relevant to the work we do around public contracts, some of which are up for renewal soon and we will be going through the process of retendering.”

The team at Arthur Cox is well positioned to advise on the Public Contracts Regulations 2015 as well as providing general corporate and commercial law advice on all aspects of your business.

 

 

 

Contact:

William Curry

Partner, Arthur Cox

Tel: 02890 265 881

Email: William.curry@arthurcox.com

 

1: Ruth Roberts of the Northern Ireland Assembly with Patrick McGovern, a Partner in Arthur Cox’s Dublin office who spoke about the EU Directives in practice at the seminar.

 

2: William Curry, Partner at Arthur Cox, with Frances Gallagher of the Northern Ireland Housing Executive at the seminar.

 

3: Michelle Carlisle of the Department of Finance and Personnel with the Northern Ireland Housing Executive’s Gary McCloskey, Nigel Andrews and Sam Dunlop.

 

4: Ciarán de Búrca of the Department for Regional Development, John Adamson of the Strategic Investment Board, Mark Archibald of Ernst & Young and Morgan Haylett of the RPS Group.

 

5: Cheryl Johnson and Ricky Burnett of arc21 with Alan McVicker of the Strategic Investment Board.

 

6: Phil Goodwin of Ernst & Young with Linda O’Hare, Colm Johnston, Catherine Thompson and Sam Blackley of Health and Social Care Northern Ireland.

 

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