Tendering for Care

The new Procurement Directive and Part B Services

Changes in the forthcoming new Procurement Directive

“Part B Services” was a concept introduced by the EU in the early 1990s. The idea was that some services required a “light touch” in terms of the tendering process. This became more important following the introduction of the Procurement Directive 2004/18 EC which clearly identifies precisely which services fall within the ambit of Part B (Please see Part A and Part B services and CPV codes in the EU Regulations section of this site). Although the range of services which fall under this heading is quite wide, the Health, Education and Social Care are of interest to providers in these sectors.

Currently, unless there is a clear “Cross Border Interest” which means that it is likely that providers in other EU states or countries outside the EU might be interested in tendering, the application of the Regulations is very limited. For example all of the EU/OJEU Procurement Thresholds 2012/13do not apply. However, purchasers must comply with the requirements for adequate advertising [to ensure competition]; provide a technical specification; and provide feedback. This regime has left purchasers of Part B services with considerable flexibility which the Government has worked hard to retain.

Since early 2011, the EU has been developing a new “modernised” Directive which is due to be published sometime around the end of 2012/early 2013. Following publication, national governments have eighteen months to incorporate its requirements into national law. The final draft and guidance were published in August of this year. During the various consultation phases it transpired that a clear majority of EU States do not want to retain Part B. Therefore Schedule 2 which lists the current Part B services does not appear in the draft Directive. However, as happens when EU law is developed, a compromise situation has been included in the draft and latest guidance. Please bear in mind that this might change yet again before the new Directive is published.

The Compromise

The new Directive acknowledges that there are services that are known as services to the person, such as certain social, health and educational services. These services are provided within a particular context that varies widely amongst Member States, due to different cultural traditions. There for the compromise is to add a new total contract value threshold of EUR 500 000. If calculated on 1st November 2012 this value would equate to £401,284.

Services to the person with values below this threshold will typically not be of interest to providers from other Member State. Unless there is evidence of cross border interest contracts for services to the person above this threshold will be subject to EU-wide transparency and advertised in the OJEU. Contracts above the new threshold will be subject to the entire new Directive and will be required to comply with all of the rules. These rules take into account the overriding requirement that all public procurement  must observe the basic principles of transparency, fairness and equal treatment and making sure that purchasers apply specific quality criteria for the choice of service providers during the tendering process.

We will post updates as and when they are announced.

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