OJEU contract notices – which supporting documents must be published simultaneously?

Hector Wakefield, Sharpe Pritchard

When the Public Contracts Regulations 2015 came into force in February 2015, some debate arose around the extent of the documentation that needs to be made available when an Official Journal of the European Union (OJEU) contract notice is published. 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 new regulations seemed to change that.

Regulation 53 introduces a requirement that a contract notice must include an internet address from where potential bidders can download the procurement documents. The new definition of procurement documents is broad:

“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.”

Interpretation 1: everything and the kitchen sink

A strict literal interpretation of this definition would seem to require a contracting authority to publish all of these documents at the same time as the contract notice. It could be taken one step further and interpreted to mean that the procurement documents must be in their final form when first published and cannot be amended after publication. However, given that there are certain procurement documents that only exist in draft form at the contract notice stage, such as a specification that is negotiated as part of a competitive dialogue, this second step is possibly one too far. Nonetheless, the need to have the whole suite of procurement documents ready at the same time as the OJEU notice may cause practical problems in certain time-pressured situations.

Interpretation 2: context sensitive

Adopting a more purposive approach, it is possible to interpret the definition of procurement documents as any document that exists at the relevant time. Thus, when a contracting authority publishes an OJEU notice, it should simultaneously make available any documents relating to the procurement that it has produced up until that point. As more documents are produced or referred to, these should be made available too. Taking this interpretation to its extreme, publishing an OJEU notice without any supporting documents at all would therefore not be an automatic contravention of regulation 53. See ‘Ensuring compliance’ below for further comment on this point.

CCS guidance

Usefully, guidance from the Crown Commercial Service (CCS) supports a pragmatic approach along the lines of interpretation 2. In Guidance on electronic procurement & electronic communication it states:

“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)

Ensuring compliance

It is important to remember that, whatever approach is taken, contracting authorities must still comply with the fundamental principles of public procurement, namely: transparency, equal treatment and non-discrimination. In practical terms it would be difficult to meet these principles if no procurement documents were made available when the OJEU notice was published. Although regulation 29(2) relates to a competitive procedure with negotiation, it serves as an excellent barometer for all the procedures: the documents available to the market must be ‘sufficiently precise to enable suppliers to identify the nature and scope of the requirement and decide whether to request to participate’.

Therefore, the contracting authority must avoid providing insufficient or unclear information at the start of the procurement. This would prevent the situation where potential suppliers argue that they would have expressed an interest or submitted a bid had information that was only disclosed later been available from the beginning.

From a commercial perspective, too, it is important that an authority has a sufficiently advanced idea of the works, services or goods it requires before initiating the procurement process. It should be confident that suppliers understand the nature and scope of the procurement so that any submissions made at this early stage can be appropriately assessed.

As a minimum, and this will vary according to the type of procurement procedure, it would be prudent to make any pre-qualification documentation available, alongside the OJEU contract notice. This should include any assessment methodology and other related information in sufficient detail for suppliers to understand both the nature and the scope of the contract being procured, whether this is in the form of a draft specification, draft contract or other procurement document.

This article discusses a UK law, the Public Contracts Regulations 2015, that is an implementation of an EU directive (2014/24/EU). When the UK leaves the EU, the Public Contracts Regulations will continue to be UK law as it is enshrined in our domestic statute, but future governments will have the option to amend or repeal it. A number of commentators have suggested that this may not be the government of the day’s top priority, or that our eventual relationship with the EU may mandate keeping the regulation as it is. In short, there is a lot of uncertainty, but for now the Public Contracts Regulations 2015 is still good law.