Royal Institution of Chartered Surveyors Procurement Changes

Royal Institution of Chartered Surveyors Procurement Changes

Procurement: opportunities under the new legislation Robin Fallas MacRoberts / Ready For Business June 2016 Preliminaries: understanding the “Commi...

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Procurement: opportunities under the new legislation Robin Fallas MacRoberts / Ready For Business

June 2016

Preliminaries: understanding the “Commissioning & Procurement Map” Subject to the procurement rules: • “service contract” Not subject to the procurement rules: • “grant” • certain “services in the general economic interest” (Recitals 4-7, Directive 2014/24/EU)

…but broader considerations than whether the procurement rules apply • • • • • •

Best value / value for money Openness State aid considerations Financial considerations Innovation Equalities / Community Empowerment Act 2015

Procurement Rules European Public Contracts (Scotland) Regulations 2015 National Procurement Reform (Scotland) Act 2014 Procurement (Scotland) Regulations 2016 Statutory Guidance

A look at the European rules first – focus on “social and other specific services”

EU Procurement of social and other specific services What’s in:

What’s out:

• ‘Light touch regime’ with higher value threshold of £589k BUT requirement to issue an OJEU contract notice

• ‘Part B’

• No lowest cost/lowest price evaluations

What’s the difference • All above threshold ‘service contracts’ should be going through OJEU

EU Procurement of social and other specific services Is there a trick being missed? Flexibility • No set procedure (parameters: Fair, transparent, equal-treatment, non-discriminatory) • Use of specifications / innovations to achieve best outcomes • Often too rigid in approach?

Some Tools Tool

Why

Social Considerations / Community Benefits

Can evaluate when linked to the subject matter, objective, transparent, fair and non-discriminatory

Small Lots

May award small lots directly

Supported Businesses

May reserve participation to “Supported Businesses” (EXPANDED DEFINITION)

Special contract conditions

Include provided linked to the subject matter, objective, transparent, fair and non-discriminatory

Some innovations Innovations? Innovations?

Why Why

Dynamic Purchasing Systems

Increasingly being used to establish Increasingly being used to establish systems of purchase from multiple systems of purchase from multiple providers (with less procurement complexity in(with set-up) providers less procurement complexity

Framework Agreements

in Useset-up) of different lot categories (specialist,

Dynamic Purchasing Systems

Framework Agreements “innovation partnership” (light touch and NOT Regulation 32 “Innovation “innovation partnership” Partnership”) (light touch and

NOT Regulation 32 “Innovation Specification Partnership”)

“spot lot” etc)

Use of different lot categories (specialist, Potential “spot lot”route etc)to a Public Social Partnership from the outset

Potential route to a Public Social Partnership from outset The procurement rulesthe govern how you buy not what you buy

Specification

The procurement rules govern how you buy not what you buy

Price element fixed

Focus on quality

A look at the new national rules

National Rules: (focus on health and social care) What’s in: • New rules for contracts between £50k-£589k • Basic regime: Public Contracts Scotland + flexible process (parameters: Fair, transparent, equaltreatment, non-discriminatory) • Option of direct award for certain health and social care contracts • Information / remedies regime for bidders

What’s different: • More flexibility? (£172.5k -£589k) • Less flexibility? (£50k - £172.5k)

• Comprehensive reporting/transparency o Contract Award Notices o Contract Register (£50k + spend) o Annual Reports across contracting authority

National Procurement Regime – Sustainable Procurement Duty Procurement Reform (Scotland) Act 2014

Sustainable Procurement Duty

Consider:

Improving

Involving

Economic, social,

Small and medium enterprises

environmental, wellbeing and

and 3rd sector bodies including

reducing inequality in the area.

supported businesses.

Promoting Innovation!!!!!!

Looking Forward Are you procuring a service contract? • If so, tools and processes are there: • The rules don’t mandate “what you buy” • Flexible processes • Focus on innovation • Innovate (within the rules)!

The hurdles: • Buyer resource • Mutual understanding of supplier/buyer constraints • Concerns around risk

Robin Fallas, Senior Associate [email protected] 0131 248 2158

© MacRoberts LLP 2016