Crown Commercial Service
As a buyer or commissioner of supplies, services and works for the public sector you need to understand and be able to readily access the regulations and policies relating to procurement.
The Crown Commercial Service (CCS) is responsible for the legal framework for public sector procurement and leads on the development and implementation of procurement policies for government.
Introduction
The over-riding procurement policy requirement is that all public procurement must be based on value for money, defined as the best mix of quality and effectiveness for the least outlay over the period of use of the goods or services bought. This should be achieved through competition, unless there are compelling reasons to the contrary.
Public sector procurement is subject to a legal framework which encourages free and open competition and value for money, in line with internationally and nationally agreed obligations and regulations. As part of its strategy, the government aligns procurement policies with this legal framework, as well as with its wider policy objectives.
The legal framework - international obligations
Treaty obligations
Public procurement is subject to the EU Treaty principles of:
- non-discrimination
- free movement of goods
- freedom to provide services
- freedom of establishment
In addition to these fundamental treaty principles, some general principles of law have emerged from the case law of the European Court of Justice. The most important of these general principles of law for you to be aware of in the procurement context are:
- equality of treatment
- transparency
- mutual recognition
- proportionality
EU procurement directives
Since the 1970s, the EU has adopted legislation to ensure that the EU public procurement market is open and competitive and that suppliers are treated equally and fairly. The rules cover aspects such as advertising of contracts, procedures for assessing company credentials, awarding the contracts and remedies (penalties) when these rules are breached.
The EU rules are contained in a series of directives that are updated from time to time. Member states have to make national legislation (regulations) to implement the EU rules in domestic law by certain deadlines. The most recent update of the EU procurement directives was in April 2014. This followed a successful lobbying campaign by the UK government and our EU partners to negotiate a simpler, more flexible regime of procurement rules. Member states then had 2 years to implement these in national law i.e. by April 2016.
These directives are:
- Public Sector: Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC
- Concessions: Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts
- Utilities: Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC
Public procurement is also subject to the World Trade Organisation Government Procurement Agreement
Public Contracts Regulations 2015
Once the 2014 EU Procurement Directives came into force, the government prioritised the Public Contracts Directive for early implementation because it would deregulate and simplify the rules for where most procurement spend and activity takes place.
The changes enable buyers to run procurements faster, with less red tape, and with a greater focus on getting the right supplier and best tender in accordance with sound commercial practice. The implementation of the Public Contracts Regulations 2015 took effect from 26 February 2015.
Above set financial thresholds, if you are buying supplies, services or works for central government, a non-ministerial department, executive agency, or non-departmental public body, you must follow the procedures laid down in the Public Contracts Regulations before awarding a contract to suppliers.
There are exceptions if you are buying for the defence and security sector, where requirements may be covered by the Defence and Security Public Contracts Regulations (DSPCR) 2011.
Procurement for wider public sector bodies, such as local government, health and education, is also subject to the Public Contracts Regulations. However, the threshold contract values for goods and services is higher as explained in Procurement Policy Note 04/17.
The UK regulations include some specific UK rules to support growth by improving suppliers access to public contracts below the EU thresholds (sub-threshold contracts). These rules include requirements for publishing advertised public contract opportunities and contract awards below the EU thresholds, but over certain other threshold values, on Contracts Finder. Guidance on these regulations can be found online.
Local authority buyers need to also be aware of The Local Government (Transparency Requirements) (England) Regulations 2015- set out under Domestic Legislation below as these regulations require additional contracting information to be published beyond the legislative requirements of the Public Contracts Regulations 2015.
Central Government buyers also need to refer to the policy commitments set out below under the heading Procurement policies for promoting greater transparency as these set out the additional requirements for publishing tender and contract documents.
The Public Contract Regulations 2015 also include a requirement for contracting authorities to have regard to CCS guidance on the selection of suppliers and the award of contracts, and to ensure that suppliers pay their subcontractors within 30 days as is already required of contracting authorities.
CCS has published a handbook and policy specific guidance to help public sector buyers understand the new public contracts regulations.
There is also a free eLearning package available to public sector buyers which covers the main changes in the new directive.
To help raise awareness of the new EU Procurement Directives, CCS also arranged more than 200 face-to-face training sessions on the main changes in the directives for people working in the public sector. Read the training materials from these sessions.
Utilities Contracts Regulations 2016
The implementation of the Utilities Contracts Regulations 2016 took effect from 18 April 201