NIFHA Annual Conference 2014Great Homes, Thriving Communities

24 October 2014

Micaela Diver, A&L Goodbody

The new Public Procurement LandscapeHow the law interacts with commercial realities for Housing Associations

New Procurement Directives

• Public Contracts Regulations 2015 (Draft)

Directive 2014/24/EU

Public Procurement Directive

• Utilities Contracts Regulations (2015?)

Directive 2014/25/EU

Utilities Directive

• Concession (Contracts Regulations 2015?)

Directive 2014/23/EU

Transposition of Directives

Transposition

Deadline by 18 April 2016 (UK will have implemented before that date)Concessions - 2016

To note

Accelerated OpenNo Part B servicesSocial/Other servicesConcessions – thresholdNo changes to thresholds

To watch

Past performanceContract modificationsGreater use of negotiated procedureSheltered WorkshopsSocial criteria

Are Housing Associations caught by the Regulations?

Bodies governed by public law:

» Must meet three cumulative conditions:

– It has legal personality;

– It meets at least one of the following criteria:

a. It is financed for the most part by a contracting authority;

b. It is subject to management supervision by a contracting authority; or

c. It has a board more than half of whose members are appointed by a contracting authority;

– It is “established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character…”.

Does this cover all activities?

Is procurement a barrier to progress?

Common issues

Timing constraints

Capacity & performance

TUPE

Competition, bid rigging, collusive tendering

Approval process

Development Agreements

Works concession or property transaction?

Legal Test

» Set out in Helmut Muller

– Direct economic benefit to Contracting Authority

– Legally enforceable obligation to carry out works

– Requirements specified by Contracting Authority?

Basis of right of exploitation

Main object of contract

Getting the most out of procurement

Framework Agreements

Bespoke Procurement

Joint Ventures

Collaboration

Oversight body? Buying Group?

Approach to procurement

Good procurement

Good procurement compliance

Time for reform?

Legal change

Policy change?

The future of the European Union...?

QuestionsMicaela DiverAssociateT: +44 (0)28 9072 7592E: mdiver@algoodbody.com