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UK Transposition of new EU Procurement
Directives
Discussion Paper
The New “Light-Touch” Rules Regime for Health, Social
and Other Services
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Contents
Page
Contents ................................................................................................................................................... 2
Purpose of this discussion paper ........................................................................................................... 3
Overview .................................................................................................................................................. 4
Background .............................................................................................................................................. 5
Issues for discussion ............................................................................................................................... 6
Annex containing the text of the relevant directive articles .................................................................. 9
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Purpose of this discussion paper
1.
This document is one in a series of discussion papers, each one focussing on a particular
theme, on the options available in the UK1 implementation of the new EU Procurement
Directives. This paper seeks inputs on the particular choices available in respect of the new
light-touch rules regime for health, social and other services.
2.
This discussion paper explains the options, outlines some of the key issues to consider,
and poses some specific questions for stakeholders to address in response. Stakeholders
are urged to set out the rationale and evidence supporting their preferred options clearly.
3.
Responses will help policymakers to identify the balance of arguments and inform decisionmaking on the preferred options. A formal consultation on the draft implementing
regulations will follow.
4.
Please note that this series of discussion papers is strictly limited to only considering the
optional elements of the directives; there is no scope to consult on the mandatory aspects
of the directives (ie the bulk of the detailed text).
5.
We are seeking your views by Close of Play Monday 21st October 2013.
We use the term “UK” in this discussion paper for convenience, to cover only those jurisdictions to which the current
Public/Utilities Contracts Regulations 2006 apply – i.e. England, Wales and Northern Ireland, but excluding Scotland
which makes its own, separate implementing regulations.
1
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Overview
6.
Key choices arise in the Public Sector Directive in articles 74 to 76 inclusive (for Utilities,
the corresponding provisions are 84 – 86 inclusive):
7.
These choices are:
8.
i)
What national rules to put in place to give effect to the new light-touch regime (the
Directive requires us to put in place national rules, but leaves us to decide what they
should be) (Article 76)
ii)
Whether or not to make “MEAT” (Most Economically Advantageous Tender) the
mandatory basis for contracts awarded under the light-touch regime (Article 76(2))
The first choice above gives rise to many complex issues, so most of paper is devoted to
exploring the issues that arise and the key questions for stakeholders. The second choice is
only covered in brief, being a much more straightforward “yes/no” option, but stakeholder
feedback is equally welcome on that point.
Annexes:
Article 4: Threshold amounts
Articles 74-76 – light touch regime
Annex XVI – List of Services covered in the new light-touch regime
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Background
9.
The new Directives will effectively abolish the existing regime for so-called “Part B Services”
contracts, and will introduce a new light-touch regime for health, social and other services.
10. The list of services is contained in Annex XVI – fewer services are covered than in the “Bservices” regime (particularly due to the absence of the broad “other services” category),
meaning that more contracts will be subject to the full rules.
11. A relatively high threshold (when compared with the threshold for Part A Services) has
been applied to this light-touch regime – 750,000 Euros for Public Sector / 1M Euros for
Utilities. Above these thresholds, Member States will have to follow the national procedural
rules which the Member State must design itself.
12. There are few specific requirements laid down by the Directive, for above-threshold
contracts in the light-touch regime:

The publication of a contract notice or prior information notice (except where there
are grounds for using the negotiated procedure without a call for competition, for
example where there is only one provider capable of supplying the services required)

The publication of a contract award notice (CAN)

National rules must ensure compliance with Treaty principles of transparency and
equal treatment
13. The publication of a CAN and compliance with Treaty principles are already required for
Part B Services.
14. Other than these key aspects, Member States are largely free to decide for themselves
what rules should be laid down in their “light-touch” regimes. In the health sector, the
Government has already put in place arrangements for the purchasing of clinical services
(the NHS Procurement, Patient Choice and Competition Regulations2) to drive improved
quality and best value. These effectively put in place a light touch regime for clinical
services. Existing EU requirements, for example to publish contract award notices, sit
2
These regulations apply to NHS England and clinical commissioning groups and continue the important safeguards
to protect patients’ interests (namely the Principles and Rules for Cooperation and Competition) which would not have
otherwise have applied to these bodies which enjoy greater autonomy within a legislative framework of the Health and
Social Care Act 2012. The regulations provide scope for complaints to, and enforcement by Monitor as an alternative
to challenging decisions in the courts. The regulations apply alongside the Public Contracts Regulations 2006 and do
not affect their application.
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alongside the health sector requirements and this will continue to be the case when the light
touch regime is in place.
15. In addition, the new directive makes it optional for Member States, in their national lighttouch-regime rules to mandate the “Most Economically Advantageous Tender” as the basis
for awarding contracts (in other words, to ban use of “lowest price” as an alternative basis
for award)
Issues for discussion
CHOICE 1: What national rules to put in place to give effect to the new light-touch regime
(the Directive requires Member States to put in place national rules, but leaves us to
decide what they should be) (Article 76)
16.
Whilst the flexibility given in the directive may be helpful, it also makes more complex the
process of making the right choice over which rules to include/exclude. The main purpose
of this discussion paper is to ask the very broad question: specifically, what rules
should be included in the UK’s light-touch regime? Some key issues are explored
briefly in the narrative and questions below, but we would welcome stakeholders’ input on
any aspects.
17.
The UK Government has a policy of not gold-plating or over-implementing, in other words
not going beyond the minimum requirements of a directive. But what are the “minimum
requirements” in this respect, and what would be the most helpful proposition? Do we need
certain basic concepts to be imported from the main rules in order to avoid unexpected
problematic events arising in the light touch rules?
18.
The starting point for a minimalistic approach would seem to be that the light-touch regime
only contains the OJEU advertising obligation, Treaty principles, and any particular
requirements implied by case law. These latter (case-law) requirements could include areas
covered by the Commission’s Interpretative Communication (IC) on contract awards not
fully subject to the Procurement Directives, such as:

Various principles and procedures to be observed in contract awards, such as
o Non-discriminatory description of the subject matter (avoiding trade marks etc)
o Equal access for suppliers from other Member States
o Mutual recognition of diplomas, certificates or other evidence of qualifications
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o Appropriate time limits for expressions of interest and tenders; these should be
long enough to allow bidders to make a meaningful assessment and prepare their
offer
o Transparent and objective approach – participants must be able to know the rules
in advance and have certainty that they will be applied equally

Shortlisting applicants, as long as this is done in a transparent and non-discriminatory
manner
Stakeholders are invited to comment on the usefulness of covering explicitly, or not, any
of the above aspects in the new light-touch regime rules.
19. The paragraphs below discuss further practical considerations about what could and should
be included in the UK’s light-touch regime rules.
20. Does it make sense to make other permissive provisions – such as clarity that contracting
authorities can exclude suppliers who are fraudsters, or who have performed poorly etc?
21. Clearly, the more that is imported from the main rules into the light touch rules, the more it
becomes similar to the main rules, thereby potentially removing the perceived advantages
of having a “light-touch” regime. But as many of the provisions in the main rules are
“permissive” rather than “restrictive”, does failing to import these rules reduce flexibility
rather than retain it?
22. Does it make sense to make it clear that some or all of the procedures (open, restricted,
negotiated) etc and tools (frameworks, Dynamic Purchasing Systems, e-Auctions, eMarketplaces) are also available in the light-touch regime, or would this be unhelpfully
restrictive by implying that all those procedural rules have to be followed to the same
detailed letter as the main rules? In other words, has the absence of these tools being
covered in the existing Part B rules ever caused significant problems? Would a more
general provision be more helpful, such as a regulation that allows use of tools and
procedures that are analogous to those in the main rules, but making clear that the only
procedural requirement is that use of such analogous tools and procedures is done in a
way that respects Treaty principles of transparency, equal treatment, non discrimination
and so on (so as to avoid implying that all the detailed procedural rules in the main rules
also apply)?
23. It may be burdensome to import provisions that need not otherwise be there, for instance
mandatory requirements on standstill, or ecommunications, but are there any restrictions
that are essential, to avoid problematic effects?.
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24. Would it be preferable to import the minimum time limits for suppliers to respond to
adverts/tenders into the light touch regime, or say nothing about timescales, or go for a
middle-ground solution where it is made clear that suppliers should be given a reasonable /
proportionate amount of time to respond?
Stakeholders are invited to consider the above points, and provide views on what should
be and what should not be covered under the UK’s light-touch-regime rules, and explain
their reasons for those views.
CHOICE 2: Whether or not to make “MEAT” (Most Economically Advantageous Tender)
the mandatory basis for contracts awarded under the light-touch regime (Article 76(2))
25. The directive makes this mandation possible, so the question is, is it desirable to do so? In
any event the UK has an established policy of pursuing best value for money in public
procurement (vfm being broadly analogous to the concept of MEAT), so it is arguable
whether such a mandation is needed. By mandating MEAT in the light-touch regime, it
would remove a flexibility that already exists (ie to award on lowest price where helpful).
This would be against the UK’s general appetite for more not less flexibility in the rules. But
are there any compelling arguments that should be taken into account in favour of such a
mandation, or does the flexibility of the status quo override them?
Handling of Information
26. The information you send may need to be passed to colleagues within Cabinet Office or
other Government departments, and may be published in full or in a summary of responses.
27. All information in responses, including personal information, may be subject to publication
or disclosure in accordance with the access to information regimes (these are primarily the
Freedom of Information Act 2000, the Data Protection Act 1998 and the Environmental
Information Regulations 2004). If you want your response to remain confidential, you should
explain why confidentiality is necessary and your request will be acceded to only if it is
appropriate in the circumstances. An automatic confidentiality disclaimer generated by your
IT system will not, of itself, be regarded as binding on the Department. Contributions to the
consultation will be anonymised if they are quoted.
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Annex containing the text of the relevant directive articles
Article 4
Thresholds amounts
This Directive shall apply to procurements with a value exclusive of value-added tax (VAT)
estimated to be equal to or greater than the following thresholds:
(a)
EUR 5 000 000 for public works contracts;
(b)
EUR 130 000 for public supply and service contracts awarded by central government
authorities and design contests organised by such authorities; where public supply contracts
are awarded by contracting authorities operating in the field of defence, that threshold shall
apply only to contracts concerning products covered by Annex III;
(c)
EUR 200 000 for public supply and service contracts awarded by sub-central contracting
authorities and design contests organised by such authorities; this threshold shall also apply
to public supply contracts awarded by central government authorities that operate in the field
of defence, where these contracts involve products not covered by Annex III;
(d)
EUR 750 000 for public contracts for social and other specific services listed in Annex XVI.
Articles 74-76 inclusive – Light-touch Regime
Article 74
Award of contracts for social and other specific services
Public contracts for social and other specific services listed in Annex XVI shall be awarded in
accordance with this Chapter, where the value of the contracts is equal to or greater than the
threshold indicated in Article 4(d).
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Article 75
Publication of notices
1.
Contracting authorities intending to award a public contract for the services referred to in
Article 74 shall make known their intention by any of the following means:
(a)
by means of a contract notice, which shall contain the information referred to in Annexe
VI Part H, in accordance with the standard forms referred to in Article 49; or
(b)
by means of a prior information notice, which shall be published continuously and
contain the information set out in Annex VI part I. The prior information notice shall refer
specifically to the types of services that will be the subject of the contracts to be
awarded. It shall indicate that the contracts will be awarded without further publication
and invite interested economic operators to express their interest in writing.
The first subparagraph shall, however, not apply where a negotiated procedure without prior
publication could have been used in conformity with the provisions of Article 30 for the award
of a public service contract.
2.
Contracting authorities that have awarded a public contract for the services referred to in
Article 74 shall make known the results of the procurement procedure by means of a contract
award notice, which shall contain the information referred to in Annexes VI Part J, in
accordance with the standard forms referred to in Article 49. They may, however, group such
notices on a quarterly basis. In that case, they shall send the grouped notices within 30 days
of the end of each quarter.
3.
The Commission shall establish the standard forms referred to in paragraphs 1 and 2 by
means of implementing acts. Those implementing acts shall be adopted in accordance with
the advisory procedure referred to in Article 91(2).
4.
The notices referred to in this Article shall be published in accordance with Article 49.
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Article 76
Principles of awarding contracts
1.
Member States shall put in place national rules for the award of contracts subject to this
Chapter in order to ensure contracting authorities comply with the principles of transparency
and equal treatment of economic operators. Member States are free to determine the
procedural rules applicable as long as such rules allow contracting authorities to take into
account the specificities of the services in question.
2.
Member States shall ensure that contracting authorities may take into account the need to
ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of
the services, the specific needs of different categories of users, including disadvantaged and
vulnerable groups, the involvement and empowerment of users and innovation. Member
States may also provide that the choice of the service provider shall be made on the basis of
the most economically advantageous tender, taking into account quality and sustainability
criteria for social services.
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Annex XVI – Services Contracts covered in the Light-Touch Regime
Annex XVI
CPV Code
Description
75200000-8; 75231200-6; 75231240-8;
79611000-0; 79622000-0 [Supply
services of domestic help personnel];
79624000-4 [Supply services of nursing
personnel] and 79625000-1 [Supply
services of medical personnel]
from 85000000-9 to 85323000-9;
98133100-5, 98133000-4; 98200000-5
and ; 98500000-8 [Private households
with employed persons] and 98513000-2
to 98514000-9 [Manpower services for
households, Agency staff services for
households, Clerical staff services for
households, Temporary staff for
households, Home-help services and
Domestic services]
Health, social and related services
85321000-5 and 85322000-2, 750000006 [Administration, defence and social
security services], 75121000-0,
75122000-7, 75124000-1; from
79995000-5 to 79995200-7; from
80000000-4 Education and training
services to 80660000-8; from 92000000-1
to 92700000-8
Administrative social, educational,
healthcare and cultural services
79950000-8 [Exhibition, fair and congress
organisation services], 79951000-5
[Seminar organisation services],
79952000-2 [Event services], 79952100-3
[Cultural event organisation services],
79953000-9 [Festival organisation
services], 79954000-6 [Party organisation
services], 79955000-3 [Fashion shows
organisation services], 79956000-0 [Fair
and exhibition organisation services]
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75300000-9
Compulsory social security services3
75310000-2, 75311000-9, 75312000-6,
Benefit services
75313000-3, 75313100-4, 75314000-0,
75320000-5, 75330000-8, 75340000-1
98000000-3; 98120000-0; 98132000-7;
98133110-8 and 98130000-3
Other community, social and
personal services including services
furnished by trade unions, political
organisations, youth associations and
other membership organisation
services.
98131000-0
Religious services
55100000-1 to 55410000-7; 55521000-8
to 55521200-0 [55521000-8 Catering
services for private households,
55521100-9 Meals-on-wheels services,
55521200-0 Meal delivery service]
Hotel and restaurant services
55520000-1 Catering services, 555220005 Catering services for transport
enterprises, 55523000-2 Catering
services for other enterprises or other
institutions, 55524000-9 School catering
services
55510000-8 Canteen services, 555110005 Canteen and other restricted-clientele
cafeteria services, 55512000-2 Canteen
management services, 55523100-3
School-meal services
3
79100000-5 to 79140000-7; 75231100-5;
Legal services, to the extent not
excluded pursuant to Article 10(ca)
75100000-7 to 75120000-3; 75123000-4;
75125000-8 to75131000-3
Other administrative services and
government services
These services are not covered by the present Directive where they are organised as non-economic services of
general interest. Member States are free to organise the provision of compulsory social services or of other
services as services of general interest or as non-economic services of general interest.
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75200000-8 to 75231000-4
Provision of services to the
community
75231210-9 to75231230-5; 75240000-0
to75252000-7; 794300000-7; 98113100-9
Prison related services, public
security and rescue services to the
extent not excluded pursuant to
Article 10(ga)
79700000-1 to 79721000-4 [Investigation
and security services, Security services,
Alarm-monitoring services, Guard
services, Surveillance services, Tracing
system services, Absconder-tracing
services, Patrol services, Identification
badge release services, Investigation
services and Detective agency services]
Investigation and security services
79722000-1[Graphology services],
79723000-8 [Waste analysis services]
98900000-2 [Services provided by extraterritorial organisations and bodies] and
98910000-5 [Services specific to
international organisations and bodies]
International services
64000000-6 [Postal and
telecommunications services], 641000007 [Post and courier services], 64110000-0
[Postal services], 64111000-7 [Postal
services related to newspapers and
periodicals], 64112000-4 [Postal services
related to letters], 64113000-1 [Postal
services related to parcels], 64114000-8
[Post office counter services], 64115000-5
[Mailbox rental], 64116000-2 [Postrestante services], 64122000-7 [Internal
office mail and messenger services]
Postal Services
50116510-9 [Tyre-remoulding services],
71550000-8 [Blacksmith services]
Miscellaneous services
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