Getting up to speed
With little progress on calls for an exemption, developing social landlords need to be aware of new procurement rules, says Bill Hull
At the end of 2011 the European Commission published its proposals to modify EU public procurement rules. The proposals are the outcome of the Commission’s Green Paper, Towards a more efficient European Procurement Market circulated in early 2011, which sought views on measures aimed at simplifying the procurement rules and making the award of contracts more flexible.
As reported by Inside Housing, the National Housing Federation (NHF) responded to the Commission’s Green Paper, arguing that social housing providers should not be subject to the procurement rules at all and that the regime should be simplified to avoid the time delays and costs that it was felt the rules caused in the sector. The chief executive of the NHF stated that the rules are a piece of red tape it can do without as they are “highly bureaucratic, extremely expensive, reduce our capacity to build new homes and bring no obvious benefit.”
The NHF has recommended that minimum timescales should be reduced to allow for faster procurement and that rules should be simplified and made more flexible by allowing negotiations to take place during the process. To a degree, measures to accommodate these recommendations have been included in the proposals. In particular a competitive procedure with negotiation and proposals to relax the conditions for the use of the competitive dialogue procedure has been introduced. This means that it is no longer limited to use for more complex procurement exercises.
At the same time, a number of the NHF’s significant suggestions in its consultation response have not been addressed. These include the NHF’s suggestions that the threshold for aggregated services and supplies should be increased; the scope and application of remedies should be reduced; and that the rules should be amended to clarify the position around development agreements in the wake of the Muller case. Most significantly, there is currently no indication that the aim of the social housing sector to be removed from the regime altogether is any closer. For the foreseeable future UK housing associations therefore remain classified as ‘contracting authorities’ and will continue to be required to comply with the public procurement regime.
Negotiation to finalise the text of the proposed amendments currently continues at an EU level. Following this, the position will become much clearer when it emerges how the UK intends to implement the changes, which must be done before mid-2014. It is hoped that, once finalised, the amendments will at least make compliance easier for the sector. For the time being though, the message is business as usual.
Bill Hull is a public procurement specialist at national law firm TLT
For more information please contact Bill Hull on 0117 917 7808 or bill.hull@TLTsolicitors.com. Bill Hull is an experienced public procurement specialist and head of TLT’s commercial services group. Visit www.TLTsolicitors.com.