As is a part-time tradition in the making here in Brabners procurement team, we like to take a moment at this time of year to look back and reflect on a busy year in procurement law, while also shoe-horning a vaguely Christmas-y theme in. This year is obviously on Santa’s naughty list with events such as Brexit and a global pandemic having a major impact on public procurement.
Without further ado we therefore present the 12 days of procurement-mas, a recap of an unusual year:
- Reduced financial minimum thresholds from the EU
We started the year with a change in financial thresholds, below which public authorities would not be subject to the full requirements of EU procurement law. Unusually, the thresholds decreased in Euros for 2020 but the exchange rate meant they went up in the UK. Whilst the thresholds used to be issued by the EU Commission from 1st January 2021 they will be updated by the UK Cabinet Office and will continue to apply.
You can read the full article and the current thresholds here:
- The Cabinet Office released guidance on emergency procurement during Covid-19
In March the pandemic was new and unforeseen, or was it? We will come back to that later! The Cabinet Office released guidance for public authorities on the operation of the Public Contract Regulations 2015 (PCR). The note highlighted the options for public authorities facing an urgent need to procure goods and services. Of particular relevance was regulation 32 of the PCR, this allows authorities to make direct awards in situations of extreme urgency (subject, of course, to some important criteria).
Our article on the guidance is as relevant now as it was then, particularly in light of the developments discussed below. You can find it here:
- We predicted that many public authorities would use ‘framework agreements’ during Covid-19
We expected public authorities would make use of existing framework agreements to speed up procurement of suddenly required goods and services. We set out the options for authorities considering this approach, and the requirements for those intending to make use of this option. The report recently released by the National Audit Office, discussed below, shows a huge increase in government procurement using such agreements. The guidance released so far, and doubtless there will be more to come, will be extremely valuable to public bodies considering this approach in future.
The article can be found here:
- The High Court provided a reminder of the importance of the ‘30 Day Rule’
In two separate cases the High Court dismissed procurement challenges issued after the expiry of the ‘30 Day Rule’. The rule requires a challenge against a procurement decision to be issued within 30 days of the date of the breach which caused the loss. Whilst the Court has discretion to extend this period to 3 months it declined to do so in both of these cases, despite the ongoing pandemic. It was, and is, a timely reminder to bring any anticipated challenge without delay.
You can read the full article here:
- The government encouraged the use of public contracts to maintain economic stability
We wrote about the Cabinet Office guidance note, encouraging authorities to maintain payments under public contracts. The aim of this was to provide economic stability for companies providing goods and services under public contracts. We later wrote about the updated guidance, perhaps optimistically, predicting the ‘beginning of the end’. The later guidance encouraged authorities to re-evaluate and perhaps re-negotiate their contracts.
The articles can be found here and here:
- The ECJ gave guidance on the application of procurement law where two public authorities contract
The European Court of Justice (ECJ) gave guidance on the exception to the application of procurement law where two public authorities contract to provide certain services, as permitted under the PCR. This is the first time we have received such clear guidance following the codification of the former Hamburg Waste principles
The full article can be found here:
- The PPRS gave an insight into developing issues during the pandemic
The Public Procurement Review Service provides an alternative opportunity to raise concerns about poor procurement practice. It releases a regular report about its activities and the type of complaints it deals with. Notably, the majority of complaints received by the PPRS related to late payment, badly run procurement processes and inappropriate use of framework agreements. The report also reminded readers that the PPRS can be a useful method for achieving resolution.
https://www.brabners.com/blogs/public-procurement-review-service-whats-new
- Further amendments Public Procurement (Amendment etc) (EU Exit) Regulations are laid before parliament
Th regulations aim to safeguard UK procurement law on the UK’s exit from the EU. The regulations will substitute references to the Public Contracts Directive in procurement legislation to references to specific financial thresholds in pounds sterling. The regulations also make further changes which will see the divergence of EU and UK procurement law moving forward.
You can read a full analysis here:
- The National Audit Office reports on government procurement during the pandemic
The NAO released its report into central government procurement during the early stages of the Covid 19 pandemic. It is, we think it fair to say, rather damning. The report highlights failings in the transparency, fairness and conduct of due diligence in PPE procurement. Several of the contracts highlighted in the report are also subject to judicial review proceedings. Those proceedings highlight issues in the government’s use of regulations intended for ‘extreme urgency’. Was the pandemic really, legally speaking, unforeseen, especially as matters continued beyond April?
You can read the full article here:
- The Cabinet Office reminds us of the change in reporting and advertising requirements after the 1 January 2021
Government and public contracts in the UK will no longer need to be advertised on the OJEU. Contracts must instead be advertised on the new ‘Find a Tender’ service.
Further guidance highlights opportunities for public authorities to set requirements for tender bidders to be based in a certain area, and/or to be SMEs. These rules only apply where the contract value is below the relevant financial threshold.
- The Government issues a Green Paper regarding the future of public procurement post Brexit
The UK Government has recently issued a Green Paper with some proposed reforms for public procurement post-Brexit. Stating that the end of the transition period “provides an historic opportunity to overhaul our outdated public procurement regime”, the Government intends the reforms to speed up and simplify the UK’s procurement processes. There now begins a public consultation to allow comment on the proposed reforms.
- 2021 is coming and everything is changing
The UK’s exit from the European Union will likely result in major changes in procurement law in the near future. The Green Paper is just one part of the puzzle. A deal, if any, with the EU may bring certain requirements with it, likewise the entry of the UK into the WTO’s GPA will require adherence to certain minimum public procurement responsibilities. Nevertheless, you can rest assured that our advice remains the same; it is important to get public procurement right the first time around, and to act quickly and correctly when it goes wrong.
Our dedicated procurement team can provide specialist advice when it matters most.
Our Procurement Team wishes you a very merry Christmas and, to those of you who work for contracting authorities, a challenge-free New Year.
