Procurement: three key questions that all authorities should ask themselves

Procurement: three key questions that all authorities should ask themselves

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:

Have we checked out the government's main page on the new rules?

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.

  • Has all relevant guidance been checked? (New guidance is added regularly and could be easily overlooked. For example, on 5 March guidance was added on the new light touch regime for some service contracts.)
  • Does it apply to us?
  • Have we taken advantage of the free training that is available (such as in the Crown Commercial Service's Learning Hub?

Have we considered any other applicable laws that may apply during the procurement process?

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).

  • bribery and corruption law
  • contract law
  • data protection and freedom of information law (including audit law)
  • employment law (including the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE))
  • equality law (including the public sector Equality Duty)
  • health and safety law
  • judicial review law
  • local government law (including the Best Value Duty (BVD))
  • public sector law (including the need to consider the economic, environmental and social benefits of procurement), and
  • state aid, and
  • laws on the Welsh language (including the Welsh Language Board’s/ Bwrdd Yr Iaith Gymraeg’s guidance on public sector contracts and the Welsh Language. The Board was abolished on 31 March 2012 but this guidance is still referred to on the Welsh Government’s website)

Does any other specific guidance apply?

You should always check what guidance applies to the contracting aut

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