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New public procurement rules have been in place for almost two weeks now.
Much has been written about the Public Contracts Regulations 2015 (PCR); less on how they fit in with other laws and guidance.
Whilst contracting authorities need to understand and apply the PCR for any new tenders that they publish—except where an exemption applies—they also need to be aware of other guidance that may apply.
Here's three key questions that every contracting authority ought to ask themselves:
Details on the new rules are set out by the Cabinet Office and the Crown Commercial Service's on their joint webpage: Transposing EU procurement directives.
Remember that procurements do not take place in a legal vacuum where only public procurement law applies.
Therefore, the areas of law below, in particular, should also be considered in addition to the PCR (bearing in mind that not all of them may apply).
You should always check what guidance applies to the contracting authority (bearing in mind that such guidance may not be circulated widely. Equally, guidance may apply to specific matters only such as environmental sustainability; or equality and non-discrimination).
Guidance (and best practice) may also apply to individuals who take part in a procurement process such as the code of conduct of the Chartered Institute of Purchasing and Supply (CIPS). Moreover, a contracting authority may need to comply with, or have regard to, voluntary International Standards relating to procurement (such as those published by the International Organization for Standardization (ISO)).
So what happens if you simply ignore the guidance?
Not a good idea!
Failure to comply with procurement law (and related guidance) can create all manner of problems particularly where there is intense scrutiny in the use of public monies. Better to spend time at the beginning of the process getting it right than trying to fix mistakes once they have occurred. Even small mistakes can be fatal to a tender.
So what do you think? Do the new rules offer greater flexibility? Are they easier to understand? Do let us have your thoughts below.
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