“The 3 Ps: Procurement” 4 December 2015

Speaker Hayley Green Solicitor – Projects Team Procurement and State aid h.green@ashfords.co.uk 01392 333739  Hayley advises public and private clients on the application of the public procurement and State aid regimes, procurement and State aid structuring, the procurement process, compliance with the regimes and a wide range of associated contractual documents and governance. She has a proven reputation for assisting clients, including government departments, with complex procurement and State aid matters and has a practice focus on publicly funded projects and national and European funding programmes, including the European Regional Development Fund. Hayley also delivers regular training and workshop sessions on public procurement and State aid.

New Public Procurement Regime Public Contracts Regulations 2015 in force 26 February 2015 repealed Public Contracts Regulations 2006 Regulates the way public contracts for works, services and supplies are procured to ensure effective competition Applies to all above-threshold “OJEU” contracts Includes revised rules for below-threshold contracts

PCR 2015: Key Changes and Features Variety of significant procedural changes: Mandatory form of PQQ and stricter rules for using PQQs All procurement documents to be available to bidders online All communications and submissions via electronic means (currently best practice, mandatory from October 2018) Better access for SMEs: Minimum annual turnover requirements cannot exceed more than twice the estimated value of the contract (unless special risks to the contract) Organisations must be allowed to self-declare compliance and “self-clean” Contracting Authorities encouraged to use Lots Payment conditions – payments within 30 days, all sub-contracts to include the same terms

PCR 2015: Key Changes and Features Pre-market testing specially allowed, e.g. bidders days Publication on OJEU and Contracts Finder Provisions to allow modification of contract after award – six (6) circumstances Must comply with Government guidance – or report to Cabinet Office

Quick Word on New Rules for Below-Threshold Contracts Treaty Principles still apply: Transparency Equal treatment and non-discrimination Proportionality Mutual recognition If above £25,000 (£10,000 for central government): Advertisement on Contracts Finder Procurement documentation to be available to bidders online No PQQ stage allowed – can assess “minimum requirements” but must be proportionate to specific needs of the contract Award notices in Contracts Finder - indicate whether the winning bidder is a SME or voluntary, community or social enterprise

ERDF Projects and Procurement – Myths and Lessons Learnt Be aware of what the ERDF Grant Agreement says: Contractual obligations to comply with the UK/EU public procurement regime and Treaty Principles - mirrors ERDF Regulation (EU) No 1303/2013 Non-contracting authorities are contractually subject to the Treaty Principles Do not assume that projects in Cornwall or the South West have no cross border interest: Almost all contracts will have potential of cross border interest THINK – Could an organisation elsewhere in the EU submit a tender? Refer to the European Commission’s irregularities and corrections for procurement when designing procurements (C(2013) 9527 Final – see Annex) Also set out in DCLG’s ERDF Procurement Guidance 2015

ERDF Projects and Procurement – Lessons Learnt Use of existing Frameworks – be careful! No guarantee of ERDF compliance Advertisement is key: Above threshold – advertise in OJEU and Contracts Finder Below threshold – advertise in Contracts Finder Do not assume your existing procurement policies and standing orders will be ERDF compliant! Awarding an ERDF works contract? Be aware of the subsidised contract rules for non-contracting authorities Provide for future modifications of the contract at the outset – see Reg 72 PCR 2015 Keep every single piece of paper! Use an electronic extranet or procurement portal whenever possible

Any Questions?