Regulatory Timeline: Regulated Procurement

“2015 has seen a major change in the regulation of public procurement in the
UK, with the entry into force of the Public Contracts Regulations 2015. The
introduction of the Utilities Contracts Regulations 2016 and Concession
Contracts Regulations 2016 in spring 2016 will complete the biggest modification
of UK procurement law in a decade.”

16 November 2015 – Energy Solutions EU v Nuclear
Decommissioning Authority
listed to begin 

The ordinary course of procurement challenges is that a claimant will try to keep
alive its prospects of winning the contract by issuing a claim form in the standstill
period before the contract has been signed, and thereby suspending the contract
award to the winning bidder. Once the contract has been signed, claimants are
generally left only with a remedy in damages. Energy Solutions brought a
damages-only claim against the NDA after the standstill period had expired. If
Energy Solutions is successful in its claim for breach of the Public Contracts
Regulations 2006, the case will be a landmark decision in the award and
quantification of damages in procurement challenges.

Early 2016 (before 1
April) – Utilities Contracts Regulations
2016 

The Government recently published a draft version of the new Utilities Contract
Regulations 2016 (“UCR 2016”), which replaces the Utilities Contract Regulations
2006.

The Regulations refresh the rules around utility procurement and are anticipated to
come into force in early 2016.
Among the key areas of change under the draft UCR 2016 are: 

• a new definition of a utility, including removal of the UCR 2006 method of
  identification of utilities by list;
• codification of the rules on pre-procurement market engagement;
• removal of the distinction between Part A (fully regulated) and Part B
  (lightly regulated) services;
• limiting of the duration of framework agreements to 8 years (previously
  unlimited); 
• introduction of a positive requirement for utilities to investigate
  abnormally low tenders; and 
• codification of the existing line of case law following Pressetext on the
  modification of contracts during their term (also referred to as material
  variation). 

The thresholds above which the regulations apply, and the rights and remedies of
bidders in the event that a utility is in breach, will remain unchanged under the
UCR 2016.

Early 2016 (before 1
April) – Concession Contracts
Regulations 2016 

The Cabinet Office has also published a draft set of Regulations as part of its
consultation on the new Concession Contracts Regulations 2016 (“CCR 2016”).

Wholesale codified regulation of concessions contracts is almost entirely new in
UK law, with previous regulations applying only to works concession contracts.
At a glance, CCR 2016 will:

• introduce codified regulation for procurement of a species of contract
  that has previously been subject only to overriding EU treaty
  requirements of transparency, non-discrimination and equal treatment;
  and
• provide remedies analogous to those under UCR 2016 for suppliers in
  the event that a utility or contracting authority fails to adhere to CCR
  2016 in procuring a concession contract. 

The effects of CCR 2015 may include: 

• increased publication of opportunities to participate in concession
  contracts;
• longer, more formal competitions for concession contracts; 
• greater competition for renewal of any existing concession contracts;
  and 
• increased scrutiny and potential for challenge of concession contract
  awards. 

As with the UCR 2016, the risks of non-compliance with the CCR 2016 will lie with
the procuring authority or utility.

18 April 2016 – ‘Light Touch’ regime of the
Public Contract Regulations
2015

In place of the previous distinction between Part A and Part B services in the PCR
2006, the Public Contracts Reguations 2015 introduce a new ‘light-touch’
procurement regime for social and other specific services.

Where this regime applies, contracting authorities will have a high degree of choice
in how they run tender exercises and the evaluation criteria that they can take into
account when awarding contracts. 

The threshold for the light-touch regime is Euro 750,000. Contracts for specified
services falling below this threshold will also be governed by the parallel regime
under the NHS (Procurement, Patient Choice and Competition) (No. 2)
Regulations 2013. The light-touch regime will not take effect until 18 April 2016.
Until that time the specified services will continue to be required to be procured as
Part B services.