PROCUREMENT REFORM: CHECKLIST FOR CONTRACTING AUTHORITIES

Transcription

1 PROCUREMENT REFORM: CHECKLIST FOR CONTRACTING AUTHORITIES Issue Action Required Deadline for Implementation Done? Public Contracts (Scotland) Regulations New thresholds and rules for Schedule 3 services (Regs. 5(1)(d) and 74 to 76) Threshold of 589k for Schedule 3 services (formerly Part B services health, social care, legal etc.), above which contract must be awarded in line with light touch regime in regs 74 to 76 Familiarise procurement and client teams with the new threshold Put procedures in place to procure above-threshold contracts in line with requirements OJEU notices etc. If appropriate, decide standard procedure and produce standard documentation for procuring Schedule 3 services 2 Special conditions in contracts (Reg.19(4)) Obligation to include conditions relating to the performance of the contract / framework and reasonably necessary to ensure the contractor complies with environmental, social and employment law, including relevant collective agreements or various international law measures (e.g. certain International Labour Organisation conventions) 3 Oral communications (Reg. 23(10)) Document all oral communications which could have a substantial impact on content / assessment of tenders; prepare written or audio records summarising the main elements Ensure procurement team understand the obligation, and what conditions should / can be applied to what contracts Update your standard tender documentation, perhaps with a note to consider what bespoke obligations would be appropriate in particular cases Brief procurement and client teams on the need to document all relevant oral communications Put in place a consistent and reliable system for recording oral communications where necessary v1

2 4 New competitive procedure with negotiation (Reg. 30) New procedure allowing an iterative process of engaging with bidders to decide how best to deliver what you want 5 Use of Lots (Reg. 47) Obligation to give reasons where you choose not to break contracts up into lots; if you do break them up you must indicate in the contract notice whether operators can tender under one, several or all lots Familiarise procurement and client teams on the new procedure Instruct procurement and client teams on need to consider using lots, and to record reasons if decide against Update procurement documentation to reflect requirements 2 6 Mandatory online access to documents (Reg. 54) Procurement docs must be fully accessible online; this is no longer optional (though there are still a few exceptions) Ensure your procurement processes and IT systems are set up to comply 7 European Single Procurement Document (ESPD) (Reg. 60) Obligation to use the ESPD, and accept it as evidence that an economic operator meets certain criteria; replaces the SPQQ Update your tender documentation Ensure procurement team understand how to use the ESPD, and only request supporting documentation following award decision or when otherwise allowed to do so 8 Exclusion criteria (Reg. 58) Duty to exclude any operator guilty of non-payment of taxes or various other prohibited acts and offences (now including blacklisting) and may exclude for certain others; new rules on self-cleansing and time served Familiarise procurement team with the new grounds for exclusion, the applicable time limits and the self-cleansing rules. 9 Permitted Award Criteria (Reg. 67) Awards must be made on the basis of the most economically advantageous tender, using a price-quality ratio; price-only awards no longer lawful Brief procurement and client teams on this change and the need to identify quality aspects in all tenders Amend documentation where required

3 3 10 Contract modification (Reg. 72) Familiarise procurement and client teams with the new Post-award modifications to a contract or framework modification rules, and instruct not to agree changes without agreement will only be permitted in certain circumstances: checking the regs consolidate existing case law and formalise the rules Check that your template documentation contains suitable review clauses 11 Electronic Communications (Reg. 23) All procurement communications must be conducted electronically (unless the nature of the procurement means Review and amend any standing orders or other internal rules that may require hard copies of documentation 18 April 2017 (central that is not practically possible, in which case reasons must be given) Ensure consistent and reliable systems are in place to accept, record and store electronic communications 18 April 2017 (central Amend procurement documentation to reflect need for reasons where electronic communication not used 18 April 2017 (central 12 ESPD to be electronic only (Reg. 60(7)) ESPD must be provided and accepted exclusively in electronic form Review and amend any standing orders or other internal rules that may require hard copies of documentation Ensure consistent and reliable systems are in place to accept, record and store electronic communications 18 April April 2017 (central

4 4 Procurement Reform (Scotland) Act 2014 / Procurement (Scotland) Regulations 1 New thresholds (s.3) Thresholds of 50k for supply and services contracts (other than for health or social care services) and 2M for works contracts, above which Act requirements apply 2 Use of Public Contracts Scotland website (s.23 and regulation 7) All intentions to seek offers and contract award notices to be published on Public Contracts Scotland website (including award notices for call-off contracts under frameworks) Familiarise procurement and client teams with the new thresholds, and the need to apply the Act s requirements Ensure your procurement team are clear on the notice requirements, and that procedures are in place to comply with them Brief team on the new requirement to publish award notices for call-off contracts (not required under the 2015 Regulations) Amend procurement documentation if necessary 3 Exclusion criteria (ss and regulations 8 and 9) Broadly replicates requirements of regulation 58 in the 2015 Regulations, for contracts between the thresholds in the Act and those in the 2015 Regulations 4 Duty to give reasons to unsuccessful participants (s.32) Similar to existing duty under the 2012 / 2015 Regulations, for contracts between the thresholds in the Act and those in the 2015 Regulations Familiarise procurement team with the new grounds for exclusion, the applicable time limits and the self-cleansing rules Ensure procurement team understand the need to give reasons, and record their decision-making processes appropriately to allow for that 5 Duty to provide information to unsuccessful participants or winning bidder (s.33) For contracts between the thresholds in the Act and those in the 2015 Regulations, duty to provide information within 30 days where a request is made within 30 days of the s.32 Ensure mechanisms are in place to capture information requests, and deal with them appropriately

5 notice / notice of the decision to award 5 6 Contracts register (s.35) Duty to keep and maintain a register of all contracts above the s.3 thresholds; must record specified information; must be public, subject to withholding sensitive information 7 Sustainable procurement duty (s.9) Duty to consider how a procurement can improve local social, economic and environmental wellbeing; facilitate involvement of SMEs; and promote innovation (where factors are relevant to what is being procured and it is proportionate to take account of them) 8 Community benefit requirements (ss.24-25) Duties to: consider whether to impose a community benefit requirement (re training and recruitment or sub-contracting opportunities, or otherwise intended to improve local economic, social or environmental wellbeing) in all contracts of 4M or more; either summarise the requirements in the contract notice or give reasons for choosing not to include; and state the intended benefits of any requirement in the contract award notice Put appropriate register in place to record and store all live above-threshold contracts Brief procurement team on need to record relevant information after contract is awarded, and procurement and client teams on need to update records to reflect any post-award changes Brief team(s) on ability / need to redact information where appropriate Brief client teams on need to consider these issues when identifying their procurement needs Brief procurement team on engaging with client team at an early stage to ensure these issues have been considered If necessary, amend standard documentation and evaluation processes to reflect this duty Brief client teams on need to consider these issues when identifying their procurement needs Brief procurement team on engaging with client team at an early stage to ensure these issues have been considered If necessary, amend standard documentation and evaluation processes to reflect this duty Ensure procurement team includes required information in contract and award notices 1 June 1 June 1 June 1 June 1 June 1 June 1 June 9 Annual procurement strategy and report (ss.15 to 18) Authorities expecting to spend at least 5M on above- Confirm (or if necessary decide) how your procurements will contribute to the carrying out of your functions and achieving of Before 31 December

6 threshold contracts in the next financial year must (before your purposes; deliver value for money and comply with your 6 the start of that year) prepare and publish an annual general duties of equality, non-discrimination, transparency and procurement strategy covering various specified issues; and proportionality as soon as reasonably practicable after the end of the year produce an annual procurement report Confirm and if necessary produce general policies on the various specified issues (e.g. use of community benefit requirements, Before 31 December payment of a living wage, procurement of fairly and ethically traded goods and services) Confirm and if necessary put in place payment policies and contractual provisions to ensure payments down the supply chain Before 31 December are made no later than 30 days after invoice Prepare and publish first procurement strategy covering the remainder of the then-current financial year and all of the next Brief procurement team and relevant client teams on the strategy, to ensure procurements comply with it so far as reasonably practicable 31 December 31 December Review existing procurement strategy, make such revisions as are appropriate for the next financial year, and brief relevant teams accordingly Review procurements carried out in previous financial year, your performance against your procurement strategy and the use of community benefit requirements and supported businesses; consider procurements expected during the next two financial years; and prepare and publish a report Before the end of first full financial year post 31 December As soon as reasonably practicable after the end of first full financial year post 31 December

7 7 For further information relating to deadlines, regulatory details or what Brodies can do to help you to implement the changes, speak to our Procurement team who can be contacted below: Roger Cotton Partner +44 (0) Charles Livingstone Partner +44 (0) 141