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.
After that date each EU member state, including the UK, has 2 years in which to implement the new Directives (other than the electronic tendering provisions, where the period is 54 months). Cabinet Office is looking to expedite implementation, at least for England, Wales and Northern Ireland, and this could happen later this year. Scotland will make its own implementing Regulations.
There are some key changes that public sector contracting authorities need to be aware of (watch out for future briefings on some of these). Some of the 'big picture' changes include:
- a fundamental change to the procurement of services – with a more limited group of services benefiting from an exemption from the rules than is now the case;
- the introduction of 'self-declarations' with a view to reducing the administrative burden on bidders;
- a new Directive governing public works and services concessions;
- a new 'negotiated procedure with competition' that might sit alongside competitive dialogue for complex projects;
- an increased focus on social and environmental matters in procurement; and
- codification of key pieces of case law from recent years – including a detailed test for a 'Teckal' company, and rules governing when a material change to a contract requires a new procurement exercise.
Anthony Collins Solicitors are working with the Cabinet Office through their consultation programme on those aspects of the new Directives that involve discretion on the part of the member state in their implementation. Discussion papers we have responded to recently include discussions on:
- central purchasing bodies;
- compliance with social and environmental law, and group bidding;
- tender assessment;
- electronic procurement and security; and
- new forms.
And in the meantime…
The EU tendering thresholds for those EU countries which have not adopted the euro are benchmarked against the euro every two years. The European Commission has now set out the revised thresholds from 1st January 2014. These are:
Services and Supplies: £172,514
For Part B services, which are not subject to the EU procurement rules in full, the thresholds will only be relevant to the completion of a contract award notice.
The new thresholds for 'small lots' are:
Services and Supplies: £66,672
These are where up to 20% of a 'single requirement' for works, services or supplies can be let without OJEU tendering, as long as each contract is valued below the 'small lots' threshold.
We expect these thresholds to be in force until the new Directives are implemented in the UK.
For more information
For more information or advice on the EU procurement rules, copies of our responses to the Cabinet Office discussion programme, or to discuss any aspect of the new public sector Directive, please contact Gayle Monk on email@example.com, Sarah Lines on firstname.lastname@example.org, Andrew Millross on email@example.com, or your usual contact within Anthony Collins Solicitors.
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