Regulaton & Policy
Useful Information on EU Regulation Timeframes and Some Practical Advice

We have written a lot of content this quarter covering various aspects of the latest changes to EU Regulations – what they mean for public procurement in terms of abnormally low tenders; whether certain aspects will open the doors for more fraud and corruption; how they affect mutuals; how infringements are and will be treated; and other related material alongside general overviews. There’s plenty to keep you up to date with who’s doing what and what the challenges are for implementation. And of course there are similar sites all over the Web reporting in all sorts of different ways about the biggest shake up of EU procurement rules in years. But here is today’s useful Information on EU Regulation timeframes with some practical advice.

We like to give our readers information that we think they’ll find useful, so we’d like to share with you a series we found particularly interesting. It’s aptly called “Countdown to Law-nch” and it’s written by Mills & Reeve LLP on the Lexology website, helping people to follow legislation, keeping a grip on what is due for launch when and related issues, this time on the Public Contracts Regulations 2015. It has looked at the challenges and quirkiness of individual clauses, such as the “light-touch” regime.

It says this is “ … destined to completely replace the current Part B Services regime, for some service contracts that are valued at over 750,000 Euros. As anticipated, the draft Regulations published on 19 September take a very minimalist approach, and the light touch regime is actually featherlight. Although there’s a new requirement for either an OJEU notice or PIN, the contracting authority is then free to design whatever procurement process it chooses, provided this doesn’t offend against principles of transparency and equal treatment.” But it then goes on to divulge a twist in the tale!

It has also covered the interplay between the 2015 Regulations and the NHS (Procurement, Patient Choice and Competition) (No.2) Regulations 2013, relevant in the UK. And most recently it has looked at e-Procurement adoption and the main area that it suggests contracting authorities should be focusing on: meeting the requirements around providing electronic availability of procurement documents.

“Regulation 53 (which will come into force as soon as the 2015 Regulations “go live,” probably in the first half of 2015) requires that contracting authorities shall provide unrestricted, full, direct access (via the internet) free of charge to the “procurement documents,” from either the date of the publication of the OJEU (which must be despatched electronically) or the invitation to confirm interest …  This is a mandatory requirement which, for many, will require a step change in current working practices and a good deal more up front preparation to have all the procurement documents prepared and ready by the date of issuing the OJEU.”

The pressure on contracting authorities to get themselves into a position to run a procurement fully electronically is huge and the lawyers report “we have been eagerly awaiting news on the likely timetable for the introduction of the new requirements. The news is mixed: certain requirements have been delayed for as long as possible, while other requirements will be introduced in advance of the deadline imposed by the Directive.”

One requirement, it says, that is being delayed for ‘as long as possible’ is the use of certain tools like “e-Certis (an online certificates database) when running the selection process” and “the new European Single Procurement Document — effectively a ‘supplier passport’ which will prove there are no grounds for excluding that supplier. However, practitioners may be relieved at the news that mandatory use of these tools will be delayed until the latest time possible under the Directive (which is April 2017 for central purchasing bodies and October 2018 for all other contracting authorities).”

Individual countries have some policy choices around some of the electronic procurement provisions. So there is some flexibility in ‘how’ the directives are implemented. This is a series that is helpful to follow, with clear guidance on when authorities should expect to be ready and for what! You can follow the series here.

For more ‘practical’ advice around implementation, Spend Matters has produced a plethora of informative and first-hand-experience materials. In particular, “Implementing the eProcurement Mandate – Technology Choices and Key Decision Factors ” – a  paper sponsored by Vortal, leading European public sector eProcurement software firm, which gives unbiased guidance for implementing bodies.

The paper defines exactly what is meant by “eProcurement” in terms of the mandate, the various key issues in terms of the choices facing users, like, cost, the time required to implement systems, and their capability and performance. It then goes on to analyse the key decisions that users will need to make. You can download it for free here.