The new Public Contracts Regulations 2015 are in force from today in England, Wales and Northern Ireland.
The government published the final form of the new Regulations on 5 February 2015, following a consultation period which started back in September 2014. The new regulations transpose the new EU public sector procurement directive (Directive 2014/24) into national legislation, which itself came into effect back in April 2014.
The implementation of the new Regulations comes more than a year ahead of the deadline for transposition of the new Directive. Member States were given two years to implement the Directive, but the government indicated from the outset that it intended to fast-track implementation using the copy-out approach (where the text of the Directive is literally copied into national rules). The government was keen to enable both buyers and bidders to take early advantage of the increased flexibility of the new regime.
The new Regulations do not apply retrospectively, so any procurements commenced prior to today's date will continue to be subject to the Public Contracts Regulations 2006. Under the transitional provisions in the new Regulations, a procurement will be deemed to have commenced where:
- a contract notice has already been sent to OJEU
- any other form of advertisement has been published
- a contracting authority has contacted a supplier to seek expressions of interest or offers in respect of a proposed contract opportunity, or has responded to an unsolicited expression of interest or offer received from an economic operator in relation to a proposed contract opportunity.
Contracts for NHS healthcare services which fall within the meaning and scope of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 will also remain subject to the 2006 procurement regulations until April 2016. Some of the requirements in the new Directive relating to e-procurement are also postponed.
The government will next turn its attention to transposing the new utilities directive (Directive 2013/23) and the new directive on concessions (Directive 2013/25) before the deadline of 17 April 2016.