Rawlison Butler. A Brief Guide for Suppliers to Public Procurement Selling to Government Bodies

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Marjorie Ferguson
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1 Rawlison Butler A Brief Guide for Suppliers to Public Procurement Selling to Government Bodies

2 If you want to do business outside the UK you can expect the same levels of protection Introduction If you are a company who supplies or wants to supply goods, services or works to UK Government bodies, this guide will give you a brief overview of: the legal regime that applies to the UK Government and other UK public bodies when they want to purchase services, goods or works (commonly referred to as public procurement) above certain financial thresholds and the key elements of that legal regime that you need to be aware of. The legal regime: What is it and why have it? There are certain EU principles surrounding free movement of goods, freedom to provide services, equal treatment, non-discrimination and transparency that mean the UK Government and other UK public bodies (known as contracting authorities in the public procurement world) can t just purchase goods, services and works how they wish. As a supplier, this is good news because it means that you can expect certain minimum levels of protection that are not available to you if you are supplying to the private sector. To ensure the free movement of goods and services and place greater emphasis on the above EU principles, there are a series of EU public procurement laws (known as Directives) which mean that contracting authorities must not only award contracts fairly and without discrimination on the grounds of nationality, but they must also treat all potential bidders equally. If they don t, they open themselves up to legal action from a variety of third parties, including potential suppliers. These principles and EU public procurement laws apply equally to governments and government bodies in all other EU Member States. So, if you want to do business outside the UK you can expect the same levels of protection. In England and Wales, the Public Contracts Regulations 2015 (PCR) (Scotland has very similar laws) is the law which governs how contracting authorities purchase goods, services or works over certain financial thresholds. Where a contracting authority is purchasing below these financial thresholds, or is purchasing certain types of services which fall within the light touch regime (eg, investigation and security services), it will be subject to much more limited rules under the PCR (which will not be covered in this guide). What are the basics that suppliers need to know? How will I know when a contracting authority wants to buy goods, services or works? They must publish a standard form notice known as an OJEU or contract notice in the Official Journal of the European Union. Because all EU Member States must also publish their OJEU or contract notices in the Official Journal, the number of notices published will be voluminous! There are various companies who monitor these notices and, for a yearly subscription fee, will provide you with alerts to opportunities which match your criteria.

3 ...a contracting authority can exclude you if you have been found guilty of certain criminal offences, where there are questions surrounding your integrity What are the financial thresholds? The financial thresholds which trigger the full force of the PCR are calculated on the basis of the estimated value of the contract (net of VAT) together with the costs of any renewals/extensions. Currently, the financial thresholds are: Goods Services Works Central Government authorities 111, ,676 4,322,012 Other public sector contracting authorities 172, ,514 In relation to the light touch regime the financial threshold is 625,050. What are preliminary market consultations? They are a way for contracting authorities to test the market before they publish an OJEU or contract notice. Any advice gleaned can be used to help the contracting authority plan and conduct the procurement procedure provided that it does not distort competition or result in a violation of the EU principles relating to non-discrimination and transparency (see above). These opportunities are also useful for suppliers as they can help shape how a procurement is structured. How long will I have to respond to an OJEU notice? This depends on the procedure (see How will the public procurement be structured? for more detail) being used by the contracting authority: Procedure Open Restricted Competitive Dialogue (No Negotiation) Competitive Dialogue with negotiation Innovative Partnership When does the Minimum Time Limit commence? From the date the OJEU or contract notice is published Requests to tender (PQQ response) - from the date the OJEU or contract notice is published Tenders - from the date the ITT is sent to bidders From the date the OJEU or contract notice is published Minimum Time Limit 35 days 30 days In certain circumstances, the contracting authority can accelerate these timescales. I have been excluded by the contracting authority before I ve had a chance to submit a tender why? Contracting authorities are required to exclude potential bidders in the early stages if they don t meet certain criteria and don t fall within a permitted exception. For example, a contracting authority can exclude you if you have been found guilty of certain criminal offences, where there are questions surrounding your integrity or where your performance under contracts with other contracting authorities have been significantly or persistently deficient.

4 The contracting authority has a choice of 5 procurement procedures that it can use How will the public procurement be structured? The contracting authority has a choice of 5 procurement procedures that it can use, subject to satisfying any relevant criteria: Procedure Key Features Restrictions on Use Open None Restricted Competitive Dialogue (No Negotiation) Competitive Dialogue with Negotiation Open to all potential tenderers to submit tenders but only suitable where tenders will be easy to evaluate Open to all potential tenderers but only a certain number will be shortlisted therefore more appropriate than the open procedure for procurements where there is likely to be a large amount of supplier interest Open to all potential tenderers but only a certain number will be shortlisted can only be used where the criteria for use are satisfied. Negotiation of the contract terms is not permitted Open to all potential tenderers but only a certain number will be shortlisted can only be used where restrictions on use are satisfied. Negotiation of the contract terms is permitted None Contracting authority s needs can t be met without adaptation of readily available solutions Design or innovative solutions are required Special circumstances related to the nature, the complexity or the legal and financial makeup or because of risks attaching to them mean contract can t be awarded without prior negotiation Will I be told why I ve not be successful? Yes. Contracting authorities have various reporting and debriefing obligations. Before they can enter into the contract with the successful bidder there must be a 10 day standstill period to allow bidders to be debriefed and consider any legal rights that they might have. The 10 day standstill period starts from the date the contracting authority notifies the unsuccessful bidders of its intention to award a contract to the successful bidder. What rights do I have if I m not the successful bidder? You have a right to take legal action against the contracting authority. Your remedy will depend on whether or not the contracting authority has entered into a contract with the successful bidder. If it has not, the court can stop the contracting authority from entering into that contract and/or award you damages for any loss or damage suffered. If the contract has been entered into, the two main remedies for you to be concerned about are the right for the court to declare the contract ineffective (if certain grounds are satisfied) and also award you damages for any loss or damage suffered. You may therefore get a second bite at the apple or you might just get financial compensation and the contract which the contracting authority has entered into, or is planning on entering into, with the successful bidder will get to run its course. Innovative Partnership Contracting authorities can establish longterm partnerships for the development and subsequent purchase of a new, innovative product, service or works Technical specifications can t be established with sufficient precision or Only irregular/unacceptable tenders have been submitted in response to a procurement run using the open or restricted procedure Truly innovative solutions are being sought that cannot be met by purchasing goods, services or works already available on the market

How RB can help Our extensive experience of public procurements means that we can support you through and advise you on all aspects and stages of a public procurement including: guiding you through

5 How RB can help Our extensive experience of public procurements means that we can support you through and advise you on all aspects and stages of a public procurement including: guiding you through the OJEU/contract notice and the relevant tender documents reviewing the contractual terms that will apply to the goods, services or works being purchased assisting you with your tender response to ensure that it is compliant and meets the evaluation criteria helping you to finalise the contractual terms if you are the successful bidder and advising you on any potential challenge and remedies if you are not the successful bidder For further information on all our public procurement services, please contact: Lisa Downs Partner, Commercial E ldowns@rawlisonbutler.com T +44 (0) Mark O Shea Partner, Commercial E moshea@rawlisonbutler.com T +44 (0) Disclaimer: This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of the contents of this document. Rawlison Butler LLP is a Limited Liability Partnership registered in England (number OC318343) and is authorised and regulated by the Solicitors Regulation Authority. 11/15

European Single Procurement Document ESPD (Scotland) Version 1.6

European Single Procurement Document ESPD (Scotland) Version 1.6 Reference: R3-52-G - 0-19/09/2016 The ESPD (Scotland) includes the following parts and sections: 1. Instructions 2. Part I. Information