NIFHA Annual Conference 2014 Great Homes, Thriving Communities 24 October 2014 Micaela Diver, A&L Goodbody.

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Presentation transcript:

NIFHA Annual Conference 2014 Great Homes, Thriving Communities 24 October 2014 Micaela Diver, A&L Goodbody

The new Public Procurement Landscape How the law interacts with commercial realities for Housing Associations

New Procurement Directives Public Contracts Regulations 2015 (Draft) Directive 2014/24/EU Public Procurement Directive Utilities Contracts Regulations (2015?) Directive 2014/25/EU Utilities Directive Concession (Contracts Regulations 2015?) Directive 2014/23/EU

Transposition of Directives Transposition Deadline by 18 April 2016 (UK will have implemented before that date) Concessions To note Accelerated Open No Part B services Social/Other services Concessions – threshold No changes to thresholds To watch Past performance Contract modifications Greater use of negotiated procedure Sheltered Workshops Social criteria

Are Housing Associations caught by the Regulations?  Bodies governed by public law: »Must meet three cumulative conditions: –It has legal personality; –It meets at least one of the following criteria: a. It is financed for the most part by a contracting authority; b. It is subject to management supervision by a contracting authority; or c. It has a board more than half of whose members are appointed by a contracting authority; –It is “established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character…”.  Does this cover all activities?

Is procurement a barrier to progress?

Common issues Timing constraints Capacity & performance TUPE Competition, bid rigging, collusive tendering Approval process

Development Agreements  Works concession or property transaction?  Legal Test »Set out in Helmut Muller –Direct economic benefit to Contracting Authority –Legally enforceable obligation to carry out works –Requirements specified by Contracting Authority?  Basis of right of exploitation  Main object of contract

Getting the most out of procurement Framework AgreementsBespoke ProcurementJoint Ventures Collaboration Oversight body? Buying Group?

Approach to procurement Good procurement Good procurement compliance

Time for reform? Legal change Policy change?

The future of the European Union...?

Questions Micaela Diver Associate T: +44 (0) E: