E-communications in procurement

Hector Wakefield, Sharpe Pritchard

Hector Wakefield, solicitor in the Sharpe Pritchard projects team, clarifies the process of e-communications in EU procurement procedures following the introduction of the Public Contracts Regulations 2015 earlier this year.

When the Public Contracts Regulations 2015 came into force in February this year, some debate arose around the extent of the documentation that needs to be made available when an Official Journal of the European Union contract notice is issued. Under the previous regime, the Public Contracts Regulations 2006, it was permissible to issue the contract notice and then, sometime later, publish the draft contract and other documents. At first glance, the Public Contracts Regulations 2015 seemed to change all that.

The troublesome text

Public Contracts Regulations 2015 introduces a new requirement that a contract notice must include an email or internet link where potential bidders can download the ‘procurement documents’1. Looking at the sheer scope of the new definition of ‘procurement documents’ it is easy to see why this has spooked many practitioners. It includes:

“… any document produced or referred to by the contracting authority to describe or determine elements of the procurement or the procedure, including the contract notice, the prior information notice where it is used as a means of calling for competition, the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents.”

Does this mean that a contracting authority needs to publish all of these documents at the same time as the contract notice? Some commentators have suggested it does. However, when you consider that there are certain ‘procurement documents’, such as the contract award notice or a specification that has been negotiated as part of a competitive dialogue, which by their nature cannot possibly exist at the contract notice stage, you arrive at a very odd conclusion. How can you be expected to publish a document that does not exist?

Our view

Instead, it seems more sensible to conclude that ‘procurement documents’ refer to any document that exists at the relevant time. Therefore, when a contracting authority publishes a contract notice, they should also publish any documents relating to the procurement that it has available at that time. As more documents are produced or referred to, these should be made available too. But if they do not exist, the contracting authority cannot make them available. This seems to be common sense.

The logical implication of this view is that it is then perfectly permissible for a contracting authority to publish a contract notice without any supporting procurement documents. Indeed, this is our interpretation of the Public Contracts Regulations 2015. However, contracting authorities must still comply with the fundamental principles of public procurement, namely: transparency, equal treatment and non-discrimination. Without publishing supporting procurement documents, the contracting authority is unlikely to receive many or any bids. If they continue with the procurement, they run a very high risk of being challenged for lack of transparency. In practice, it is to everyone’s benefit if, at the very least, the instructions for tendering, specifications and the draft contract are published either simultaneously or shortly after the contract notice.

So, while in theory the law permits contract notices to be published ‘solo’, in practice no sensible contracting authority would bother to produce the associated procurement documents.

New Crown Commercial Service guidance

Useful new guidance from the Crown Commercial Service (CCS) supports this position. In Guidance on Electronic Procurement and Electronic Communication2 we learn:

“CCS take the view that [the definition of ‘procurement documents’] provides a wide explanation of what might constitute procurement documents and that where individual regulations refer to ‘procurement documents’, what is meant by that wording changes, based on the different stages of the process that has been reached. As the procurement and competition becomes more crystallised, CCS expect more of the documents falling within that wide definition of procurement documents to be generated and therefore supplied. In contrast, at very early stages, fewer of the documents, if any, would be included. We believe a purposive interpretation is appropriate here.” (page 13)

For competitive procedure with negotiation, competitive dialogue and innovation partnership, where some documents may depend on the outcome of negotiations or dialogue, the CCS goes on to state:

“The rules do not specifically cover these cases where elements of the final documents may necessarily depend on the outcomes of negotiations or dialogues. However, Regulation 29(2) sets out some minimum information which must be provided about the requirement. This ‘… shall be sufficiently precise to enable suppliers to identify the nature and scope of the requirement and decide whether to request to participate’. A similar requirement is set out in Regulation 31(2) and (3) on the innovation partnership. Regulation 30(6) and 30(13) cover certain information which must be provided in the competitive dialogue.” (page 13)

If you share our view that ‘procurement documents’ are only those items that exist at any given time, this all makes perfect sense. The best you can do before the final requirements are crystallised is to give tenderers as much information as is humanly feasible at this point so they can decide whether they wish to participate. This promotes the fairest competition.

What you should do now

Having the option to publish a contract notice now and publish supporting procurement documents a short time later gives contracting authorities a flexibility that may prove highly useful in certain time-pressurised situations. Sharpe Pritchard are able to offer you not only legal but also strategic advice on how to approach a procurement exercise to your greatest advantage.

For further information, please contact Hector Wakefield in the Sharpe Pritchard projects department on 020 7405 4600 or email hwakefield@sharpepritchard.co.uk.

1 Regulation 49 PCR 2015 and Paragraph 2, Part C, Annex V, Public Contracts Directive 2014.

2 Available at https://www.gov.uk/government/publications/public-procurement-regulations-electronic-procurement-and-communication.