New procurement rules are coming – it’s time to say what we want

Virag Martin was NCVO’s European and international trainee between February 2013 and December 2014. Virag has left NCVO but her posts are kept here for reference purposes.

What national rules should be applied in the new “Light-Touch Regime” for health, social and other services above EUR 750,000?

The new EU Procurement Directive (due to be adopted in December 2013) will eliminate the existing system for ‘Part B Services’, and introduce new ‘light touch’ rules for health, social and other specific services. For this group of services, a higher threshold of EUR 750,000 will apply.

The vast majority of services delivered by voluntary and community sector organisations (VCSO) will fall within the new category. The changes aim to simplify rules and reduce bureaucracy in procurement process. However, the devil is in the details: the UK government is free to design what national rules will apply.

A Cabinet Office discussion paper is seeking views on what national rules should be adopted for above threshold services in the “Light-Touch Regime”. Services below threshold of EUR 750,000 will be considered to have no cross-border interest, will not distort competition and therefore will not be subject to EU rules.

Background

Under the new “Light-Touch Regime”, the EU requires organisations with contracts above the threshold (EUR 750,000) to:

  • publish a contract notice or PIN (in OJEU)
  • publish a contract award notice (in OJEU)
  • comply with national rules for the procurement of these services.

The UK government is free to decide its own national rules, as long as they conform to the EU Treaty principles of transparency, antidiscrimination, proportionality and equal treatment.

What should be included in the UK’s national rules?

Should basic rules from the main Directive be imposed?

According to these rules, light touch rules would follow a minimalist approach which monitors:

  • advertising obligation
  • Treaty principles
  • particular requirements implied by case law
    • obligations to non-discriminatory subject-matter
    • cross-border bidding
    • mutual recognition of qualifications
    • appropriate timescale for expression of interest.

Should we follow this minimalistic approach under the new regime?

Under the current rules, ‘Part B’ service contracts already have little restriction to adhere to. Yet, contracting authorities tend to be risk-averse by over-regulating and applying the same stricter rules to health, social and other service contracts that to ‘Part A’ service contracts.

Commissioners may want to offer scope for innovation or VCSO participation, but are overruled by risk-averse procurement teams with rigid specifications. Where commissioners and procurement teams do work well together, more innovative and cost effective public services can result. Commissioners and procurement professionals should be safe and feel confident in following the lighter rules. There is a risk that by following the old case law, we are applying the same old rules leaving contracting authorities with the same discomfort and trouble of applying lighter regulation.

How should we change this?

EU Treaty principles have to apply, and case law is based on these principles anyway… So would a simplified guide on how to procure by not breaching EU law under the new “Light-Touch Regime” be helpful? Should this guide be as flexible as possible? Or would more restrictive rules be more protective?

Give our questions a quick scan, and share your comments below or email me at virag.martin@ncvo.org.uk.

The date to submit our response is 21 October, but we welcome views beyond the deadline

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