New procurement regulations in force from 1 October 2011

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By David Hansom, partner and head of public sector team, Veale Wasbrough Vizards

David Hansom sets out the key changes and the points to note in the long awaited clarifications to the procurement rules.

The Cabinet Office has published newly updated public procurement regulations. Making important changes to the rules, the new regulations will apply from 1 October 2011.

The amendment regulations will apply to the Public Contracts Regulations in England, Wales and Scotland; the Utilities Contracts Regulations; and the

What are the changes?

The main change is to require unhappy tenderers to bring any proceedings in relation to a procurement decision within 30 days of the date of knowledge of the issue giving rise to the suspected breach. The date of knowledge is the date that the challenger knew or ought to have known about the breach. This is a change from the old regime which provided that bidders must bring claims promptly and in any event within three months of becoming aware of the issue.

The High Court (Court of Session in Scotland) will have what appears to be a broad discretion to extend the 30-day period up to a limit of three months where it has ‘good reasons’ for so doing. We can expect lots of legal discussion and litigation about how ‘good’ these reasons need to be.

This change has been brought about by the European Court of Justice’s ruling in the Uniplex case which decided that the old time limits in the UK regulations (in particular, the requirement that such proceedings be brought ’promptly’) were incompatible with EU law. There are transitional provisions that will apply to current procurements where the relevant date of knowledge has occurred before 1 October 2011. There are also changes to what is needed when automatic suspension is sought.

This is good news all round in giving more certainty to the general time limit to challenge. The new rules will help contracting authorities to manage risk and progress with procurement processes. As has long been the case, would-be challengers cannot sit on their hands when bringing a complaint about a process but the rules are clearer on the general principles, and may discourage litigation on spurious claims.

Changes to standstill and other amendments

The amendment rules also clarify when there is no obligation to send an award decision notice at the start of the mandatory standstill period to certain tenderers who have been ’definitively excluded’ from the procurement process.

Other updates are to the grounds for exclusion of bidders to reflect the changes brought about by the Bribery Act and other developments. Contracting authorities should update their standard procurement documentation to reflect the new list.

David Hansom is a partner and head of Veale Wasbrough Vizards’ specialist public sector team. For more information or advice on this or any other procurement issue, he can be contacted on 020 7665 0808 or dhansom@vwv.co.uk. Website: www.vwv.co.uk