News Update
OGC publishes two new guidance notes upon developing areas of procurement
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5 Mar 2010
The Office of Government Commerce (OGC) has issued guidance upon the time limit for bringing a procurement law challenge and also the sign-posting of contract opportunities to Small and Medium Enterprises (SMEs).
Following the important case in Uniplex (UK) Limited v NHS Business Services Authority (Uniplex) the OGC has advised upon the implications of the decision upon English Law (See Hempsons Newsflash: New case clarifies period within which a procurement law challenge can be brought) . This ruling held that the challenge period for bringing a procurement law challenge may not start to run until the time when the applicant knew or ought to have known of the alleged breach of procurement law. Furthermore, no action brought within the three months will be found to be outside the challenge period. The OGC confirmed that the English courts should follow the decision in Uniplex and that the Public Contracts Regulations 2006 (the “Regulations”) may need to be amended to reflect the case. The OGC has in addition confirmed the new remedy of ineffectiveness, which has its own time limit under Regulation 47E, is not affected by this change.
The OGC also issued advice upon bringing contract opportunities to the attention of SMEs. This guidance sets out the characteristics of a contract which may be of interest to SMEs before suggesting wording that should be included within any advertisement of the contract opportunity. The OGC stresses that the objective of the guidance is to ensure that SMEs become aware of contract opportunities and that no advantage should be given to SMEs in the actual tender evaluation. This would be discriminatory and a breach of procurement law.
SME Guidance
The OGC has also published guidance upon when and how Contracting Authorities should flag contract opportunities to SMEs. Examples are given of the characteristics of a contract which may be of interest to an SME (p7). These include:
Low contract value/ volume:
- Local delivery;
- Tailored or innovative product/ service;
- Limited scale economies; and
- Open market.
Then guidance also lists characteristics of contracts where it may be inappropriate to flag an opportunity for SMEs. These include:
High contract value/ volume;
- National large-scale delivery;
- Standardised product/ service e.g. large-scale manufacturing;
- Closed or regulated market that may hinder market entry e.g. mobile phone networks;
- High barriers to entry e.g. significant capital requirements; and
- Major economies of scale.
The guidance also includes suggested wording that Contracting Authorities should include in OJEU notices and other advertisements to make it clear that the contract could be delivered by SMEs. They suggest the following wording is inserted into OJEU notices:
The suggested wording for non-OJEU advertisements is:
The wording stresses that the objective is to ensure that SMEs become aware of contract opportunities and that no advantage should be given to SMEs in the actual tender evaluation – which would be a breach of procurement law.
If you have any questions about any of the above please contact a member of our procurement team.
Further information
Please visit the OGC Guidance entitled "Procurement Policy Note - Time Limits for Challenges under the Public Procurement Regulations" at the following link: http://www.ogc.gov.uk/documents/PPN_0310_-_Time_Limits_for_Challenges_under_the_Public_Procurement_Regulations.pdf
Please visit the OGC Guidance entitled “Small supplier big opportunity: Flagging your contracts to SMEs” at the following link: http://www.ogc.gov.uk/documents/Contract_Flagging.pdf
Please visit the Hempsons’ newsflash entitled, “New case clarifies period within which a procurement law challenge can be brought” at the following link: http://www.hempsons.co.uk/sectors/health-and-social-care/news/newsflashes/article/new-case-clarifies-period-within-which-a-procurement-law-challenge-can-be-brought/09b21ab054/
If you would like further information or if you require advice on any of the above, please contact us on: enquiries@hempsons.co.uk
This news update is made available on the basis that no liability is accepted for any errors of fact or opinions it may contain. Professional advice should be obtained before applying the information to particular circumstances.
© Hempsons 2010
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