Sarah Lines examines the new ‘light touch’ procurement regime that replaces the rules governing Part B services.
One of the key changes in the Public Contracts Regulations 2015 is the abolition of the distinction between Part A and Part B services.
Under the 2006 Regulations, services were Part B and therefore excluded from the full ambit of the Regulations unless they were listed as Part A services. Under the 2015 Regulations, services are subject to the full Regulations unless specifically exempt or subject to the 'Light Touch Regime'. This article looks at the type of services and the procedure provided for under the Light Touch Regime.
The range of services which fall under the Light Touch Regime include health and social services, some administrative services, security and prison services, hotel and restaurant services and legal services (other than services related to disputes, which will be exempt altogether). Full details of the applicable services are set out in Schedule 3 of the 2015 Regulations and are reproduced at the end of this article.
The services which were previously Part B but are now subject to the full services regime include grounds maintenance, site watching and security and agency staff.
Threshold for Light Touch Regime contracts
The Light Touch Regime will apply where the contract value identified by the purchaser is equal to or greater than the threshold of €750,000 (currently £625,050 as set out in Crown Commercial Service guidance).
Flexibility in the Procedure for Light Touch Regime contracts
The Light Touch Regime procedure must start with an OJEU contract notice or PIN but after that is flexible. The Regulations allow purchasers the discretion to set their own procurement procedure for these types of contracts within the parameters of the key EU Treaty principles – including transparency and equal treatment.
In summary the key features of the 2015 Regulations Light Touch Regime are:
- The purchaser must to determine its own award procedures and these must be at least sufficient to ensure compliance with the principles of transparency and equal treatment of providers.
- The purchaser must award contracts in accordance with its published conditions for participation, time limits for clarifications and the award procedure to be applied. Regulation 76(4) allows the purchaser to move away from any of its published tender conditions on condition that this would not amount to a breach of the principles of transparency and equal treatment of providers. In these circumstances, the purchaser must document its reasons for deciding that the departure would not breach these obligations.
- All time limits imposed on providers must be reasonable and proportionate.
- The purchaser may apply procedures which correspond to procedures, techniques or other features provided for in the procedures under the 2015 Regulations.
- The purchaser may take the following into account in awarding contracts: the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services; the specific needs of different categories of users, including disadvantaged and vulnerable groups; the involvement and empowerment of users; innovation; any other relevant considerations.
Whether this change results in the sought after “flexibilisation” and simplicity is questionable. Departing from the standard procedures requires thought about what the purchaser is seeking to achieve. This could be a range of objectives from seeking to engage with SMEs by using a clear and simple procedure or seeking innovative solutions from the market by having immediate dialogue with a diverse range of organisations and then holding a combined selection and award process. Whatever the process, having clear objectives and implementing them in a non-discriminatory manner is key.
Services referred to in Article 74 of the New Directive and Schedule 3 of the 2015 Regulations
- Health, Social and related services.
- Administrative social, educational, healthcare and cultural services.
- Compulsory social security services.
- Benefits services.
- Other community, social and personal services including services furnished by Trade Unions, political organisations, youth organisations and other membership organisation services.
- Religious services.
- Hotel and restaurant services.
- Legal services to the extent that not excluded pursuant to point (d) of Article 10. Regulation 10 (1) (d) of the 2015 Regulations
- Other administrative services and Government services.
- Provision of services to the community.
- Prison related services, public security and rescue services to the extent not excluded pursuant to point (h) of Article 10. Regulation 10 (1) (h) of the 2015 Regulations
- Investigation and security services.
- International services.
- Postal services.
- Miscellaneous services (the CPV code refers to tyre remoulding services and blacksmith services)