To cascade or not to cascade, that is the question! Or is it? Actually the cascade process is not available yet as the Commission has not "approved" this element in its new State aid clearance letter.
So, what do you need to know about the new Scheme for your next tranche of superfast or ultrafast broadband delivery?
While BDUK continues in its role as guardian of the roll-out, those authorities entering into the next tranche of procurement no longer have the framework process and templates at their disposal.
Prior to BDUK issuing guidance documentation, those authorities wishing to move ahead with the next procurements are seeking to identify the elements of the new Scheme that differ from their previous projects.
The real opportunity that presents itself is the open tendering process, enabling the market to be re-opened to competition. Authorities need to be clear on appetite in their area and position themselves carefully having regard to capacity constraints on the market players in what is a quickly maturing market.
In the event that an open procurement process does not result in a successful outcome, authorities will need to look to the cascade process (with limited open access) once approved by the Commission.
Whilst the Scheme is broadly comparable with its predecessor, there are some additional elements that authorities will need to feed into their procurement processes and contractual documents, including:
- A requirement to consider alternative project structures and lotting.
- Incorporating the Code of Conduct into the process.
- Allowing for 10% extension in the OJEU Notice.
- Specific PQQ requirements - limitations on the questions to be asked.
- Specific evaluation requirements - prescriptive evaluation model to be used.
- VfM controls in a single bidder situation.
- Need to demonstrate the Step Change.
- The Regulatory Ratchet - a requirement that Ofcom regulation "trumps" contractual provisions.
- Extension of clawback and benchmarking to include non-broadband revenue.
- Revised open access and benchmarking requirements.
- Restrictions on payment mechanism used.
- Additional transparency and reporting requirements.
Ashfords LLP has advised and continues to advise on two of the four original BDUK pilot projects, call-offs under the original BDUK framework and also broadband projects using the open procurement route outside of the BDUK framework. Our team is highly experienced in advising on the procurement, State aid and contractual elements of these projects. Ashfords is a Crown Commercial Services provider, all authorities can use the Crown Commercial Services Framework to obtain further advice from us without the need to undertake a procurement process.