‘Lord Young’ reforms

What is this about?

Part 4 of the PCR 2015 contains rules on procurement which follow Lord Young Review ‘Growing Your Business' (2013). They do not come from the EU.

The intention of the ‘Lord Young' rules is to reduce the burdens on small businesses and help them win more contracts. 

Under the Lord Young reforms there are additional rules to be followed for procurement above EU thresholds and a new set of rules for below-threshold procurement.

In general, the Lord Young rules do not apply to maintained schools or Academies but those bodies do need to follow the rules on assessing supplier suitability (which includes using the standard PQQ, see below).

Health commissioners in England are exempt when procuring clinical services.

The Lord Young rules do not apply to Wales (i.e. to wholly or mainly devolved functions). 

What is new?

Above-threshold procurement

Publishing information on Contracts Finder

When a council sends a contract notice for publication in OJEU it must also send information for publication on Contacts Finder. The council must arrange for that information to be published within 24 hours of the OJEU publication date.

Information on above-threshold contract awards must also be published on Contracts Finder. Note that this also applies to contracts awarded on the basis of a framework agreement (i.e. where there is no EU obligation to publish an award notice).

This must be done after publication of the OJEU contract award notice and within a reasonable time. Government guidance recommends publication within 90 calendar days of the award date.

The regulations specify the information which is to be published. Information can be withheld in certain circumstances stated in the regulations. 

Assessing supplier suitability

The statutory guidance recommends that councils adopt a standardised set of selection questions when assessing the suitability of suppliers to provide goods and services. This does not apply to construction (see below).

The guidance includes the questions in the form of a standard pre-qualification questionnaire (PQQ) for use in two-stage procedures (see procurement routes) but explain that invitations to tender used in open procedures can also include relevant questions from the document.

The guidance is that councils should continue to use BSI Publically Available Specification 91 (PAS91) for construction contracts.

Deviations from the wording in the standard questions must be reported to the Crown Commercial Service Mystery Shopper service within 30 days of the PQQ being made available on Contracts Finder. The report must include an explanation and should be signed off by the Commercial Director, Head of Procurement or equivalent.

The standard PQQ will soon be replaced by the European Standard Procurement Document (ESPD, see selection) which is effectively a European standard PQQ.

 

Below-threshold procurement

Publishing information on Contracts Finder

When a council advertises a ‘contract award opportunity' with an estimated value of £25,000 or more (net of VAT) it must publish information about it on Contracts Finder regardless of any other ways in which the opportunity is advertised.

 

If the opportunity is first advertised in another way, publication on Contracts Finder must take place within 24 hours of that. Information can be published on Contracts Finder even if the opportunity is not advertised in another place.

A ‘contract award opportunity' is ‘the opportunity to be awarded a public contract by a contracting authority, regardless of how specific the opportunity is'.

A council is advertising an opportunity if it does anything ‘to put the opportunity in the public domain or bring the opportunity to the attention of economic operators generally or to any class or description of economic operators which is potentially open-ended'. This includes the use of PIN-like notices.

Conversely, the council is not advertising an opportunity if ‘it makes the opportunity available only to a number of particular economic operators who have been selected for that purpose (whether ad hoc or by virtue of their membership of some closed category such as a framework agreement), regardless of how it draws the opportunity to the attention of those economic operators'. 

The regulations specify the information which must be published.

The contract documents must be available over the internet, free of charge (the internet address should be given on Contracts Finder).

The Government guidance recommends that a minimum of 10 working days should be allowed for the return of tenders.

When a contract has been awarded, the council must publish information about that on Contracts Finder. The regulations specify basic information to be provided. Note that this includes whether the supplier is an SME or VCSE. Information can be withheld from publication in certain circumstances.

The Government guidance recommends this award information should be published within 90 days of the award date.

It also states that this information needs to be published for contracts awarded under a framework agreement.

Assessing supplier suitability

Councils must not include a pre-qualification stage in below-threshold procurements. Effectively, this prevents the use of pre-qualification questionnaires in sub-threshold procurement.

The threshold in question is the normal threshold for goods and services. However, for this purpose, it also applies to construction contracts and Light Touch Regime services.

Suitability assessment questions can still be asked as part of the procurement if the question is relevant to the subject-matter of the procurement and proportionate. Relevant questions can be drawn from the standard PQQ mentioned above.

The Government has the power to issue guidance on assessing supplier suitability. Reportable deviations from any guidance must be notified. 

Prompt payment of invoices

Councils must ensure that every contract they award contains payment provisions stipulated in the PCR 2015.

Essentially, payment must be made within 30 days from the date on which the invoice is regarded as valid and undisputed. This must be applied all along the supply chain.

Under the regulations these provisions are in any event an implied term of the contract.

The statutory guidance recommends a model term and provides advice on verification and acceptance of invoices.

The council must publish annual statistics on its performance on the internet. A template for this has been included in the statutory guidance together with information on transitional arrangements.