Recent guidance from the CCS suggests that there is no need to draft all of the contract and procurement documents before submitting an OJEU notice. Andrew Millross, Partner at Anthony Collins Solicitors LLP, considers this guidance in light of the legal requirements for publishing the procurement documents alongside the OJEU notice set out in the Public Contracts Regulations 2015.
What the Regulations say
Regulation 53(1) of the Public Contracts Regulations 2015 states clearly that,
“Contracting authorities shall, by means of the internet, offer unrestricted and full direct access free of charge to the procurement documents from the date of the publication in the Official Journal of a notice sent in accordance with regulation 51 or the date on which an invitation to confirm interest is sent.”
“Procurement documents” here includes the contract (including specification, payment mechanism and any key performance indicators), the invitation to tender documentation and tender submission requirements.
Previous commentary on this Regulation has concentrated on questions such as:
- Is it legitimate to require prospective tenderers to register before they are given access to the procurement documents; and
- How does this Regulation work in practice when using procedures such as competitive dialogue or the innovation partnership, where the documents are developed through the dialogue stage or through “negotiation” with tenderers?
CCS Guidance on Electronic Purchasing
The CCS Guidance on Electronic Purchasing and Electronic Communications fundamentally changes the nature of the debate on this Regulation. Page 13 of that guidance states (where the FAQ being answered relates specifically to the restricted procedure),
“CCS take the view 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 become more crystallised, CCS expect more of the documents forming 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.”
Effectively this is saying that there is no need to produce the procurement documents “up front”, as Regulation 53 has generally been understood. CCS are saying that all that Regulation 53 means is that the procurement documents simply need to be uploaded onto the internet “as and when they are produced”. So, are the Cabinet Office right, and, if not, does it matter?
The wording of Regulation 53(1) follows closely the wording of Regulation 15(6) of the Public Contracts Regulations 2006. This Regulation allowed a contracting authority to shorten the tender return deadline under the open procedure by offering,
“unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice”.
Under the 2006 Regulations “contract documents” carried the same meaning as “procurement documents” in the 2015 Regulations (other than the fact that, in 2006, it excluded documents concerned with prequalification/selection).
Applying the Cabinet Office interpretation to this “equivalent” provision in the 2006 Regulations, suggests that it would have been legitimate to “add” further documents during the tender period “as and when they are developed”. This would rather undermine the fundamental principle of transparency, though, if a tenderer is not entitled to see all the procurement documents for all the tender period.
If Regulation 53(1) had meant to say that the procurement documents should be uploaded on to the internet “as and when they are developed”, surely it would have said this?
Other CCS Guidance
Roughly a month after the CCS published its guidance on electronic procurement; further CCS guidance seems to contradict what it says about the availability of the procurement documents. Paragraph 5.16 of the CCS A Brief Guide to the EU Public Contracts Directive (2014) states,
“Electronic versions of the procurement documentation must be available through an internet URL immediately on publication of the OJEU contract notice.”
Whilst this is a gloss on the wording in Regulation 53, it does seem to rule out the possibility of uploading documents “as and when they are developed”. If a contracting authority does this, those documents would clearly not be “available…immediately.”
What is the risk of adding procurement documents after the OJEU notice is published?
The real question here is not so much whether the CCS are right, though, but whether a contracting authority can follow the CCS guidance on electronic procurement with impunity.
If a failure to make the procurement documents available before submitting the OJEU notice is a breach of the Regulations, it is important to decide when that breach occurs. I would suggest that this is when the OJEU notice is published, rather than when the procurement documents are subsequently made available. In Turning Point Ltd v Norfolk County Council  EWHC 2121 the alleged breach of failing to issue TUPE information was said to have occurred when the invitation to tender was published without that information, rather than when the consequences of its unavailability were played out through the rejection of Turning Point’s “qualified” tender. Where a contracting authority submits an OJEU notice without having made available some or all of the procurement documents first, all potential tenderers will deemed to have become aware of this when the OJEU notice is published. This is the point from which they have 30 days within which to challenge the “breach” of failing to publish those documents.
As long as a contracting authority adopts sensible time limits in its tender process, rather than the extremely short ones that could potentially be adopted under the new Regulations, it is unlikely that any tenderer will have been excluded from the procurement process within 30 days of the publication of the OJEU notice. Tenderers still “in the game” tend not to challenge procurement decisions. It is therefore unlikely that any potential tenderer would ever challenge a failure to make available some or all of the procurement documents from publication of the OJEU notice.
A tenderer could, of course, complain to the Mystery Shopper scheme. However, since this is handled by the Cabinet Office, they are hardly going to criticise a contracting authority for following their own guidance.
If the European Commission takes a different view to the CCS, there is a risk that a failure to make the procurement documents available from the date of publication of the OJEU notice could lead to a clawback of European grant towards the cost of the works, services or supplies that are being procured. Outside of this, it is unlikely that a decision to defer production of some of the procurement documents, potentially until well after publication of the OJEU notice, would ever be subject to a successful challenge.
Despite the efforts of the European Commission to promote a Directive requiring contracting authorities to draft all the procurement documents “up front”, the Cabinet Office, through the CCS Guidance on electronic procurement, seem to have sanctioned “business as usual”.
For more information on publishing contract opportunities on OJEU, see Practice note, OJEU notices.