“Do we really need to publish all our procurement documents before we go to market” is a question we are frequently asked by our clients. Regulation 53(1) of the Public Contracts Regulation 2015 requires contracting authorities, by means of the internet, to offer unrestricted and full direct access free of charge to the procurement documents from the date that a notice is published in the OJEU commencing a procurement.
Problems have arisen due to the wide definition of “procurement documents” which means 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.
This wide definition suggests that a contracting authority needs to have the PQQ, ITT, terms and conditions of contract, specification etc. ready for publication electronically on day one. This differs from what has previously been the common (but un-recommended) practice of preparing the procurement documents on a linear, stage by stage basis.
Concerns have arisen regarding whether a bidder could make a procurement challenge on the basis the documents were not published electronically on day one and how can documents be published in respect of a negotiated competitive dialogue or innovation procedure process where elements of the specification and terms and conditions may not be known on day one.
On a literal reading of Regulation 53(1) it is clear that there is a requirement to publish all the procurement documents (as defined) on day one. It is good practice in any event to prepare a number of key procurement documents before starting a supplier selection procedure. If Contracting Authorities prepare key documents ready pre OJEU then they are much less likely to face issues with their procurement process down the line and it helps them to understand exactly what it is that they are going to the market to buy.
It goes without saying that there are risks involved when adding or amending procurement documents after the OJEU notice has been published in that a failure to make the documents available before submitting the OJEU notice is inconsistent with the Regulations.
Interestingly, the Crown Commercial Service guidance issued in September 2015 takes a more relaxed approach suggesting there is no need to draft all of the contract and procurement documents before submitting an OJEU notice. It takes the view that a “purposive” view of the definition of procurement documents indicating that where individual regulations refer to procurement documents, what is meant by that wording changes based on the different stages of the process that have been reached.
The guidance goes further and suggests at the very early stages of the procurement “few if any” of the procurement documents will be included in the definition and as the procurement becomes more crystallised, further documents will be generated and supplied. If this view is correct, then contracting authorities can prepare and publish some of the key procurement documents following the OJEU notice provided the description of the procurement given in the OJEU notice and accompanying documents published with it (i.e. any descriptive document or memorandum of information) is sufficiently detailed to allow bidders to form a proper view of the nature, scope and scale of the procurement to enable them to decide whether or not they wish to take part in the competition.
In relation to Prior Information Notices, the CCS have taken the view that procurement documents would be at a “non-existent” stage if a PIN is being used merely as a pre engagement tool and therefore the obligation to publish more detail comes later when a full contract notice is issued.
Contracting authorities need to keep in mind that the guidance by CCS is an interpretation only of the EU rules as implemented in the UK and is an area which remains untested by the courts. There is no guarantee that the domestic courts or the European Court would reach the same conclusion.
There are good reasons to prepare a number of the key procurement documents in advance and release these to the market, in particular the ITT including all evaluation criteria and the specification and the Contract. Similarly if documents are finalised and ready then there is no reason not to go ahead and publish them. However contracting authorities should note there is limited flexibility to add or amend the procurement documents once published to bidders.
Preparing and making available these documents in advance is good practice. It helps shape the procurement, informs any market testing and gives a clear impression to the market that the contracting authority is well prepared and knows what it is that it wants to buy.
There may be some technological hurdles to overcome if a wide suite of procurement documents is published at the outset, for example on most e-tendering systems, bidders can only access ITT’s when they have passed the PQQ stage (meaning the Contracting Authorities may need to discuss with their current e-tendering suppliers how “read only” versions of the documents can be accessed). In addition, the size limits for uploads may be another hurdle that needs to be overcome. If the contracting authority is serious about taking Regulation 53(1) seriously then these are issues that will need to be overcome.