Public Contracts Regulations 2015 - Regulation 76

Regulation 76 - Principles of awarding contracts

Regulation 76* introduces a number of rules, nay principles, applicable to the contracts that are awarded under this new "light touch regime" of Section 7. By and large the logic of the Regulation is to provide a basic framework leaving a lot of flexibility for contracting authorities to decide how they want to award the contract. In this Regulation we trade (more) flexibility for (less) legal certainty. We trade as well standardisation for customisation. Time will tell if this emphasis in flexibility will bring about better procurement in the contracts covered. I remain sceptical and not optimistic.

Before reading my entry, check Albert's one from yesterday where he nails in the head the errors in transposition which I do not cover here.

For contracts awarded under this section, contracting authorities need to comply with the principles of transparency and equal-treatment/non-discrimination. This is similar to what happens already for contracts with a value below-thresholds and cross-border interest. The difference are the ancillary rules applicable to the Section 7 contracts.

Paragraphs 3 and 4 establish a number of ancillary rules which make the whole system more complex than it needed be for a light touch regime, that is. According to paragraph 3, if a contract or PIN notice were used as required by Regulation 75, then the contracting authority is bound to conduct the procurement in accordance with the information published in the notice regarding the conditions of participation, time limits and award procedure. The problem is paragraph 4.

Paragraph 4 introduces exceptions and loopholes to the above rules - sorry, principles - bringing about layers of complexity to the system. Under this paragraph, contracting authorities may change the "rules of the game" as long as the changes comply with certain cumulative requirements. They cannot amount to a breach of the principles of transparency and equal treatment/non-discrimination (paragraph 4(a)). To ensure there is no breach of said principles, the contracting authority needs to "give due consideration to the matter", document the decision making process and inform the suppliers of the outcome. The administrative lawyer in me looks in glee to these rules as they are a textbook example of what is expected of public bodies to carry out in any administrative decision. Oh, the irony. I am sure that this "painting by numbers" guide to administrative decisions would have been helpful to the Environment Protection Agency...

Having said the above, I am not sure on how a contracting authority can change the terms of procedure after the notice has been published without violating the principle of transparency. Perhaps this is just a small concession to those small mistakes that are corrected quickly after being detected? If so then indeed this is a little flexibility being introduced here at least in traditionally more formalistic countries like Portugal, Spain or Italy (Note: Before I get hammered in the comments, I am thinking about the Directive here and not the Regulations).

The principle of proportionality is used in this Regulation, in addition to the principles of transparency and equal-treatment/non-discrimination. According to paragraph 6 all time limits imposed on economic operators need to be "reasonable and proportionate". Courts and lawyers are going to have a field day with this one.

Paragraph 7 explicitly allows contracting authorities to either design new procedures from scratch or to adapt the ones that already exist in any way or form that they may see fit. What I think will happen here is that contracting authorities will either "scale up" the procedures they already use below-thresholds (RFQ type of procedures) or scale down the traditional procedures. By scaling down I essentially mean "shortening time limits" because we all know how fundamental those detailed PQQs are. As for the people waiting to see a breadth of new excellent procurement practices arising from this flexibility I think you are too optimistic. If flexibility was the key ingredient for incredible procurement practice, contracts below-thresholds would have provided plenty of evidence by now.

When I read paragraph 8 for the first time I was puzzled and unsure if I should laugh or grin. Paragraph 8 is essentially a laundry list of statements of intentions:

"(8) In relation to the award of contracts subject to this Section, contracting authorities may take into account any relevant considerations, 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."

I could not make this up. All procurement processes should start with the users/beneficiaries and the objectives that need to be met and then work backwards to define what is the best way to achieve the outcome. That this does not happen more often is (again) a problem of practice and not rules.

My problem with paragraph 8 is that it has nothing to do with the bulk of the Regulation. They are not principles of awarding contracts, they are "pie in the sky" nice things some people would like to happen.  It looks out of place here but would be perfect as a Recital. If you doubt my analysis read again the first sentence of the paragraph and check which modal verb is being used: may or shall.

* Apologies for the late entry. I managed to lose my draft halfway yesterday evening when the laptop ran out of battery. Picture cartoon like donkey's ears and that is pretty much how I felt.