In this article Michael Winder in our Procurement team looks into the latest interim changes to the Public Contracts Regulations 2015.
With the eagerly anticipated Procurement Bill slowly working its way through Parliament, it may be surprising to see that changes are still being made to the existing public procurement legislation. That said, the latest changes introduced to the Public Contracts Regulations 2015 (“PCR 2015”) and its utilities and concession cousins, are necessary and reflect the free trade agreements signed with Australia and New Zealand.
The new changes are set out in the Public Procurement (International Trade Agreements) (Amendment) Regulations 2023 and are due to come into effect on Friday 25th May 2023. Although there are a number of changes, they can be grouped into three primary areas:
1. Additions to Regulation 6 (Calculating Thresholds).
A new sub-section has been added into Regulation 6 which states that if a contracting authority is not able to value a contract using the mechanisms already provided under this Regulation, then that contract will now be deemed to be valued at the relevant threshold amount in order to trigger compliance with the PCR 2015. In effect, if you cannot value your procurement you have to treat it as if it is caught by PCR 2015.
2. Addition to Regulation 18 (Principles of Procurement)
Regulation 18 contains the already familiar principles of non-discrimination, equal treatment, transparency and proportionality that must be considered and adhered to throughout all stages of procurement life cycle. A new provision has been added that prevents contracting authorities from terminating contracts in such a way that “circumvents their obligations” under PCR 2015.
Given this is a general obligation rather than specifically linked to the procurement process itself, it means that the rationale behind any early termination of a contract subject to PCR 2015, or use of a break provision in such contract, will need to be recorded in case it is challenged.
3. Changes to Regulations 26, 48 and others (Prior Information Notice (PIN))
The ability to use a PIN as a basis for a call for competition in order to enter a procurement has now been removed.
This was a new ability introduced into PCR 2015, but note it has been very rarely used and is unlikely to cause significant change to the day to day procurement.
We recommend all contracting authorities are aware of the changes, given that they come into force from the end of this week. The changes apply to all contracting authorities, with the only contracting authorities not affected being devolved Welsh administrations.
If you have any questions the upcoming Procurement Bill or Public Procurement law generally, get in touch with me at michael.winder@brabners.com or another member of our procurement team.
