PLC Public Sector reports:
We recently published some new materials based on queries that we have received about the award of contracts for Part B services, which have generated significant interest. It is clearly a subject that is being considered by contracting authorities of all types and sizes in respect of contracts delivering many different types of services.
In the light of this level of interest, we thought it appropriate to try and open up the debate and seek the views of our subscribers on some of issues involved.
In June 2012, we published two “Ask the team” pieces:
- Ask the Team: How do I decide if I have to competitively tender a Part B services contract?, which looked at the legislative background to the award of contracts for Part B services, the issues to consider when trying to establish if there might be cross-border interest in a contract and the leading case law on whether a cross border interest in a contract has been established.
- Ask the Team: What are the risks of awarding a contract for Part B services without going through a procurement process?, which focused on the risks of a challenge if cross-border interest is established, together with the potential remedies for a failure to advertise if a challenge is successful.
The whole issue of the regulation of Part B (and other “unregulated” procurements) is one that has evolved to a great degree through case law and, inevitably when this is the case, there will always be new questions arising that have not been considered in previous cases - and as a result will fall into grey areas.
We are very interested in finding out exactly what grey areas our subscribers and the public procurement community in general has found itself facing to see if, to some extent, consensus can be reached as to what contracting authorities need to do, and when, during the course of a procurement for Part B services.
Therefore we would be grateful for:
- Any comments on the content of our new materials referred to above, particularly if anyone feels that a different approach may need to be considered in certain circumstances; and
- Details of any issues which you feel are not covered by is in these materials, or our practice note.
Comments can be submitted below, or if you would prefer by e-mailing firstname.lastname@example.org.
To get the ball rolling we’ll share one query we have already had, and our view (again please feel free to let us know your thoughts on this):
Question: is there any obligation to advertise a Part B (or below threshold) contract for which there is no cross border interest?
Our view: from a purely public procurement point of view, no. However, in coming to this conclusion we ignore any issues involving an authority’s standing orders, government policy requirements and any other public law argument based for example on a legitimate expectation based on the prior actions of the authority concerned.
Other questions that we would be interested in hearing your thoughts on include:
- Do people working for contracting authorities feel they are being advised to comply with a regulated type process for Part B procurements, in circumstances where such a process is disproportionate? If so, should the public sector take more of a risk based approach to determining whether to advertise, taking into account all relevant commercial, as well as legal, circumstances?
- Alternatively, should advertisement always be the default option, whatever the law says? If so, are too many contracts directly awarded without advertisement and more competitive tendering, not less, is what we need?