Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
On 17th October, the consultation closed on the draft Public Contracts Regulations 2015. As with all of the Cabinet Office consultations, we responded to this consultation.
In our response, we raised two fundamental concerns:
- We tried to persuade the Cabinet Office to delay the implementation of the obligation to make all of the procurement documents available online at the time of publication of the OJEU notice. We thought that contracting authorities were not yet ready to comply with this requirement. We also recommended that the Cabinet Office should use the intervening period obtain clarity from the Commission as to how they are expecting this provision should operate in the case of “iterative” processes such as competitive dialogue; and
- We repeated the concerns we raised earlier over the “Lord Young” reforms. We are concerned that these reforms will have the opposite effect from that which they are intended to have. We also suggested that including these provisions in Regulations implementing the new EU procurement Directive is not allowed under section 2(2) of the European Communities Act 1972 (which is the legislation under which the Regulations are made). We suggested that, if the Cabinet Office is determined to press ahead with these provisions, they should apply only to Government departments and not to local authorities or the wider “public sector”.
Some of the other points we made were:
- We said it was helpful that the numbering in draft Regulations, for the first time, mirrors the numbering of the Articles in the Directive;
- We said it would be helpful for guidance to identify how “disadvantage” is to be assessed in relation to reserving contracts for “sheltered workshops”, staffed by “disadvantaged persons” and in particular whether it can be focused on a particular area;
- We suggested amending a provision that would have made it harder to require suppliers to standardise new components to existing components;
- We agreed that guidance would be helpful in relation to Lots. We explained the complexity of assessing the most economically advantageous overall combination of tenders (MEAOCOT) where both “single lot” and “combined lot” bids are possible;
- We recommended that the ESPD “form” should be made available in sufficient time before implementation, so as to give people a chance to get used to it and understand its importance;
- We asked for further guidance on how to deal with conflicts of interest, particularly given the discrepancy between the approach of the European Ombudsman and European Court of Justice over the extent to which a conflict of interest may be “neutralised”;
- We commented that the lack of specific provisions in the Regulations enabling the direct payment of subcontractors was a lost opportunity;
- We asked for an explanation of the reason for the bizarre requirement (from the Directive) that a main contractor must provide details of its subcontractors’ legal advisers;
- We recommended that the provision which implied a term into contracts allowing them to be terminated after a “substantial modification” should apply only after a court decision that a substantial modification has occurred; and
- We suggested that detailed provisions dealing with changes to procurement procedures under the “light touch regime” should be deleted, as all that should be required was a “transparent and fair procedure”. Regulations requiring more than this were “gold plating”.
For more information
For a copy of our response to the consultation or a discussion on any aspect of the existing or proposed procurement regimes, please get in touch with any member of our procurement team including:
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