Bevan Brittan byte size procurement update 17

 

In Procurement Byte 15 we let you know that the Public Contracts Regulations 2015 were published on 5 February 2015, with most of the provisions coming into force on 26 February 2015. Please click here to read our Procurement Byte 15. We also mentioned that the main difference between the draft Regulations issued in September 2014 and the final published Regulations concern the “national” rules. These rules, in Regulations 105 to 113, implement reforms proposed by Lord Young, primarily aimed at encouraging SME participation in public procurement processes. It is important to understand that the new national rules apply to both EU contracts and contracts below the EU thresholds. In particular there are new national rules on: Advertising on Contracts Finder; and The pre-qualification/selection stage of the procurement process. In this procurement Byte 17 we look at the new requirements to publish information concerning contracts below the EU thresholds on Contracts Finder. www.gov.uk/contracts-finder Procurement Byte 16 covered the Contracts Finder publication requirements for contracts over the EU Thresholds. Procurement Byte 18 will cover the new provisions on abolition and control of the pre-qualification process. On 25 February the Crown Commercial Service published "Guidance on the new transparency requirements for publishing on Contracts Finder" ("the CCS new transparency guidance") - click here to read the guidance document.

General principle - publication on Contracts Finder at the start and end of the procurement process: Regulations 110 and 112 require contracting authorities to publish information on Contracts Finder at the start and end of the procurement process.

Contracting authorities are also required to have regard to any guidance issued by the Minister for the Cabinet Office on the form and manner of the information to be published on Contracts Finder and what is a sufficient period of time to allow for an economic operator to respond if it wishes to be considered.

The Contracts Finder publication requirements apply to central government bodies from 26 February 2015 and to other contracting authorities from 1 April 2015.

Which contracts are caught?  

Value: The starting point is that the requirements to publish information on Contracts Finder apply to all contracts for works, supplies, services and light regime contracts where the net value of the contract is:

• £10,000+ in the case of central government authorities;
• £25,000+ in the case of sub-central authorities and NHS Trusts established under s.25 of the NHS Act 2006.

Exceptions

There are, however, some specific exceptions and an important general exception.

(a) Specific exceptions - types of contract and contracting authority: the requirements to publish information on Contracts Finder do not apply:

• where the contract is above the relevant EU threshold but the provisions in Part 2 (the provisions applying the EU regime in full) do not apply anyway - for example where the contract is excluded under the EU rules or is covered by another regime, such as the Concessions Directive
• where the contract is for health care services for the purposes of the NHS - and so covered by the NHS (Procurement, Patient Choice and Competition)(No.2) Regulations 2013
• to the award of contracts by a maintained school or an academy
• to contracting authorities carrying out devolved functions in Scotland, Wales and Northern Ireland

(b) General exception - where a contracting authority does not advertise the contract award opportunity: The requirements to publish information on Contracts Finder only apply where the contracting authority “advertises a contract award opportunity”.

The Regulations explain that a contracting authority “advertises a contract award opportunity” when it does anything:

• to put the opportunity into the public domain; or
• bring the opportunity to the attention of:
  • economic operators generally; or
  • any class or description of economic operators which is potentially open ended

…..and it does so with a view to receiving responses from economic operators who wish to be considered for the award of the contract.

The contract award opportunity can be general or specific; so a general advertisement like a PIN as a call for competition which covers a number of requirements over a 12 month period, would count as a contract award opportunity, as would a contract specific advertisement.

The Regulations explain that a contracting authority does not advertise a contract award opportunity where it makes the opportunity available only to a number of selected economic operators either:

• on an ad-hoc basis; or
• by virtue of some closed category, such as the economic operators on a framework agreement.

What does this mean?

The CCS new transparency guidance provides an explanation of these provisions as follows:

"Where a contracting authority is satisfied it is lawful not to advertise an opportunity at all, for example because it has internal policies such as standing orders which do not require competition, the requirement to advertise on Contracts Finder does not apply to that contract."

We have set out below a worked example based on our understanding of the provisions.

Worked example A contracting authority’s internal contract rules provide for the following contract award methods for contracts below the EU thresholds: Contracts between £500 and £15,000 - 3 quotes from economic operators who can be approached directly. Contracts over £15,000: either posted on the authority’s Contracts Portal, which any economic operator can access to look for contract opportunities and register on as a "supplier"; or where applicable, awarded through an EU compliant framework agreement.  The authority wishes to award 3 “one-off” contracts linked to a community festival:     Publish on Contracts Finder? Contract 1 Supply of printed banners  - £5,000 No framework agreement No: internal contract rules do not require advertisement of the contract opportunity as can approach economic operators direct Contract 2 Supply of marquees  - £28,000 No framework agreement Yes: internal rules require publication on the Contracts Portal which is advertisement of the contract opportunity Contract 3 Construction of minor works - £40,000 EU compliant framework agreement covers the minor works No: if framework agreement is used Yes: if framework agreement is not used, as internal rules require publication on Contracts Portal

 

Where the contracting authority does advertise the contract opportunity and so there is an obligation to publish information on Contracts Finder then the following requirements apply:

Publication on Contracts Finder at the start of the procurement process (Regulation 110)

What information must be published on Contracts Finder? As a minimum, the information must include:

• the internet address at which relevant contract documents are accessible (see below);
• the time by which any interested economic operator must respond if it wishes to be considered:
  • the time allowed must be “sufficient but not disproportionate”;
  • the information must remain published on Contracts Finder throughout the specified time, unless the award procedure is abandoned;
• how and to whom an economic operator is to respond; and
• any other requirements for participating in the process.

When must the information be published on Contracts Finder? Contracting authorities must publish the information on Contracts Finder within 24 hours of the time when it first advertises the contract opportunity in any other way.

Publication of relevant contract documents on the internet Regulation 110(12) provides that where a contracting authority publishes information on Contracts Finder under Regulation 110 then it shall: “by means of the internet, offer unrestricted and direct access free of charge to any relevant contract documents”; and it must include in the information published on Contracts Finder the internet address at which relevant contract documents are accessible This is similar, but not identical, to the obligation to publish procurement documents which applies to contracts over the EU thresholds (Regulation 53). A document is a “relevant contract document” if: it contains information about the opportunity which goes beyond the information published on Contracts Finder; and the information is intended by the contracting authority to be taken into account by those responding the advertisement Comment What? The definition of a "relevant contract document" is not the same as the definition of "procurement documents" applying to contracts above the EU thresholds. The definition of procurement documents is arguably wider than the definition of relevant contract documents. There may be more room for flexibility in terms of what has to be provided and when.  When? Unlike the requirement applying to procurement documents for EU contracts, there is no specific date at which the relevant contract documents for below threshold contracts must be made available.  The intention may be that the relevant contract information is all provided at the beginning but one interpretation of the provisions is that information could be released in stages over the course of the procurement process. We would expect these issues to be covered in CCS guidance. Exceptions: The limited exceptions are listed at Regulations 53(3) and 53(4) and are the same as those applying to EU contracts.

 

Publication on Contracts Finder at the end of the process (Regulation 112)

Where a contracting authority awards a contract then it must also publish information about that award on Contracts Finder.

What information must be published on Contracts Finder? As a minimum, the information must, (except where withholding information is permitted under the rules) include:

• the name of the contractor;
• the date on which the contract was entered into;
• the value of the contract;
• whether the contractor is a SME or VCSE - these terms are defined in Regulation 112(4)).

When must the information be published on Contracts Finder? Contracting authorities must publish the information on Contracts Finder within a “reasonable time”.

The CCS new transparency guidance recommends that information is published no later than 90 calendar days after the contract award date.

Contracts awarded under framework agreements

Regulation 108(1)(b) requires contracting authorities to publish information on Contracts Finder when they award contracts under a framework agreement. 

This Regulation falls within the chapter covering contracts over the EU thresholds. It is therefore not entirely clear whether the requirement to publish on Contracts Finder applies to all contracts awarded under a framework agreement or whether it only applies to contracts which are over the relevant EU thresholds.

The CCS new transparency guidance states that "This information should also be published in relation to contracts awarded as a result of a Framework Agreement (e.g. as a result of a mini competition)." This implies that the intention is to cover all contracts awarded under a Framework Agreement over the £10,000/£25,000 thresholds).

There is still no obligation to publish a contract award notice in the OJEU for contracts awarded under a framework agreement, although you may choose to do so voluntarily. 

Automatic publication on Contracts Finder

The CCS new transparency guidance states that "where a contracting authority has an existing electronic link between their own portal and Contracts Finder, which means that opportunities (or information contained within) are automatically published on Contracts Finder, this link will normally be sufficient to comply with these new requirements, as long as the advertisement contains the minimum data requirements…."

Contracting authorities relying on an electronic link or using a link provided by portal providers must check to ensure that the systems are set up so that the required information is published on Contracts Finder.