Procurement and "SOS services"
Ruth Connorton and Wesley Hall look at the new "light touch regime" or "SOS services" as the less snappily titled "social and other specific services" are being commonly referred.
What does this mean?
All procurement is subject to the Regulations unless it is specifically excluded or under threshold. You need to check the CPV codes for the purchases and if you have services with a CPV code that falls into the SOS services list and your spending is over €750,000 (£625,050) then a special limited procurement regime applies.
What do I have to do?
If your services are SOS services over threshold then the Regulations only require you to:
- Publicise the opportunity at EU level, by PIN or contract notice;
- Follow a process which is as described in your PIN or contract notice (you can use the established open, restricted etc routes if you wish);
- Set time limits which are reasonable and proportionate;
- Comply with the EU principles of transparency and equal treatment;
- Publish a contract award notice – and this can even be grouped with other awards quarterly within 30 days of your quarter end.
What falls into "SOS services"?
The CPV codes are very specific but in broad categories
- Health and social services;
- Educational and cultural services;
- Hotel and restaurant services;
- Prison and security;
- Administration and community services;
- Legal services.
There is a provision that health contracts falling within the NHS (Procurement Patient Choice and Competition) (No 2) Regulations will not be subject to the new Regulations until 18 April 2016 and the old Regulations will continue to apply to them.
Buying legal services?
One point to note is that litigation legal services are excluded from the Regulations altogether with other legal services being in the light touch regime. Excluded elements include representation in arbitration, conciliation and judicial proceedings and legal advice in preparation of such proceedings where there is a tangible and high probability that the matter will become subject to proceedings.
What about standstill?
As with Part B services at present, the new Regulations as drafted do not require a compulsory standstill period as the contract could be let without publishing a contract notice (as you are allowed to publish a PIN).
Remedies?
The remedies regime does apply to light touch procurements over the threshold including the right to automatic suspension and damages. As with part B procurements now, the remedy of ineffectiveness is not available.
What if I am spending under €750,000?
The light touch regime doesn't apply. The EU principles of transparency and equal treatment are still relevant but only if the contract has a cross border interest (in which case some form of advert and process will be needed) – this should be relatively unlikely as these services are intended to identify those where a cross border interest is unlikely. The internal UK rules on under threshold contracts are still relevant and should be followed as explained in our previous article on Below threshold contracts and SMEs.
Ruth Connorton is a Partner and Head of Procurement Law and Wesley Hall is an Associate at DAC Beachcroft. Ruth can be contacted on 0191 404 4130 or This email address is being protected from spambots. You need JavaScript enabled to view it. while Wesley can be reached on 020 7894 6300 or This email address is being protected from spambots. You need JavaScript enabled to view it..