The Public Contracts Regulations 2015 contain a specific set of rules (often referred to as ‘light touch regime rules’) for certain services that tend to be of lower interest to cross-border competition. Those service contracts include certain social, health and education services, defined by Common Procurement Vocabulary (CPV) codes. The list of services to which the light touch regime applies is set out in Schedule 3 of the Public Contracts Regulations 2015.
- A relatively high threshold (when compared with the threshold for other services) has been applied to this light touch regime – £663,540*
- Below the light touch regime threshold, contracts do not normally need to be advertised in the OJEU. The Regulations recognises that only services above a threshold of £663,540* covered by the light touch regime would normally be likely to be of cross border interest. Following from this, services below this threshold do not need to be advertised in the OJEU, unless there are concrete indications of cross-border interest.
- A small number of new procedural rules for above these thresholds. Contracting authorities now have to follow a new light touch set of procurement rules for light touch regime contracts above the relevant threshold. The main mandatory requirements are:
- OJEU and Contracts Finder advertising: The publication of a contract notice or prior information notice. Except where the grounds for using the negotiated procedure without a call for competition could have been used, for example where there is only one provider capable of supplying the services required.
- The publication of a contract award notice on OJEU and Contracts Finder following each individual procurement, or if preferred, group such notices on a quarterly basis.
- Compliance with Treaty principles of transparency and equal treatment.
- Conduct the procurement in conformance with the information provided in the OJEU advert regarding; any conditions for participation, time limits for contacting / responding to the authority; and the award procedure to be applied.
- Time limits imposed by authorities on suppliers, such as for responding to adverts and tenders, must be reasonable and proportionate. There are no stipulated minimum time periods in the light touch regime rules, so contracting authorities should use their discretion and judgement on a case by case basis.
*threshold correct for period 1 Jan 2019 to 31 Dec 2021.
Authorities have the flexibility to use any process or procedure they choose to run the procurement, as long as it respects the other obligations above. There is no requirement to use the standard EU procurement procedures (open, restricted and so on) that are available for other (non light touch regime) contracts. Authorities can use those procedures if helpful or tailor those procedures according to their own needs, or design their own procedures altogether.
The light touch regime rules are flexible on the types of award criteria that may be used, but make clear that certain considerations can be taken into account, including (this is not an exhaustive list):
- 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
The legal position with regards to whether or not a standstill period is required under procurements subject to these 'light touch regime' regultions is unclear. Please see the Cabinet Office Guidance on the Standstill Period for more information.
Reserved contracts for certain services in the light touch regime. The new rules permit for certain light touch regime contracts to be ‘reserved’ for organisations meeting certain criteria e.g. public mutuals and social enterprises.
More information and an FAQ on the rules for the services categorised in the light touch regime can be found in the Cabinet Office Guide.