WRAP obtained legal advice from Leading Counsel David Elvin QC, that a contract for the supply of collected materials to reprocessors does not qualify as a “procurement” of services under EU Procurement Regulations. This means that local authorities do not need to advertise the contract in the Official Journal of the European Communities.
Contracts involving services provided for local authorities do have to go through the EU tender process, however, a process involves lengthy timescales before a contract can be awarded. Since many local authorities have misinterpreted the regulations as applying to any contract, including the sale of materials, the contract process has been made unnecessarily difficult, according to WRAP's quality sourcing manager, Chris Davey.
“The EU tender process is all about procuring services, but many local authorities thought that they had to go through that route if they were selling material,” Mr Davey said. “Local authorities have never really had to sell material before: it's something that's quite new – they're now almost traders in that respect.”
WRAP said it sought the advice after reprocessors informed them that the popular misconception of the EU procurement regulations was one barrier to increasing recycling tonnages of materials that could be sourced from local authorities.
Combined contracts
But the legal advice obtained by WRAP does warn local authorities that if their contractual arrangements involve reprocessors providing any collection services themselves, this would fall under the EU procurement regulations.
“We do have to be careful to distinguish between contracts that are purely about the sale of material and the combined sale and service provision,” Mr Davey explained to letsrecycle.com. “If it's just a local authority bulking up material themselves in their own facilities and selling it on, that's fine, but in a contract where services are also involved, it will have to go through the tender process.”
Andy Doran, chairman of the Local Authority Recycling Advisory Committee said: “This advice is particularly welcome as local authorities gear up to meet much higher and rapidly approaching recycling targets. Meeting these targets will require the placing of much larger quantities of recyclable material in the marketplace. Had the Opinion been otherwise, it could have caused serious delays in achieving greater levels of recycling.”
The full opinion on procurement regulations is available from the WRAP website.
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