Advertising on Contracts Finder - EU contracts
In our Byte size procurement update 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.
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 new national rules apply to both EU contracts and contracts below the EU thresholds. In particular there are new national rules on:
In this Byte size procurement update 16 we look at the new requirements to publish information concerning EU contracts on Contracts Finder.
Byte size procurement update 17 will cover the publication requirements for low value contracts.
On 25 February 2015 the Crown Commercial Service published "Guidance on the new transparency requirements for publishing on Contracts Finder" ("the CCS new transparency guidance").
Regulations 105 to 108 apply to contracts falling within the scope of Part 2 (Regulations 3 to 84). These are contracts which are regulated by the EU procurement rules – over threshold public contracts for works, supplies, services and light regime contracts, also framework agreements and dynamic purchasing systems.
The Contracts Finder publication requirements apply to central government bodies from 26 February 2015 and to other contracting authorities from 1 April 2015.
The CCS new transparency guidance confirms that Contracts Finder rules do not apply to:
Regulations 106 and 108 require contracting authorities to publish information on Contracts Finder in addition to publishing contract notices and contract award notices in the Official Journal of the European Union (OJEU).
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.
Guidance on Automatic publication on Contracts Finder
It is worth noting that Regulations 106 and 108 both refer to the possibility of Cabinet Office putting into place arrangements to extract information from OJEU notices and contract award notices and to publish it on Contracts Finder, without further action required from contracting authorities.
Where Cabinet Office guidance confirms that this is being done then contracting authorities will be deemed to comply with the Contracts Finder publication requirements.
Frameworks: This deemed compliance will, presumably, not apply to contracts awarded under framework agreements where no voluntary OJEU contract award notice is published but there is a requirement to publish on Contracts Finder. In these cases, unless the guidance states otherwise, contracting authorities will have to submit the required information themselves
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..."
A Cabinet Office/Crown Commercial Service led centralised solution has not yet been announced. In the meantime individual contracting authorities must publish the required information on Contracts Finder or ensure that their portal providers do so on their behalf.
Where a contracting authority sends a contract notice to the OJEU office then it must also publish information about that opportunity on Contracts Finder.
As a minimum, the information must include the information listed in Regulation 106:
….but you cannot include information on Contracts Finder which is not in the OJEU contract notice.
Time starts to run from the date of the confirmation from the OJEU office that they have received the contract notice (“confirmation of receipt”). There are two triggers for publication of information on Contracts Finder:
Trigger 1: When the contract notice is published in the OJEU within 48 hours of the confirmation of receipt then it is the date of publication of the contract notice which triggers the requirement to publish information on Contracts Finder.
The information must be published on Contracts Finder within 24 hours of the date of publication of the contract notice in the OJEU.
Trigger 2: When the contract notice is not published within 48 hours of the confirmation of the receipt then the expiry of that 48 hour period triggers the requirement to publish information on Contracts Finder.
The information must be published on Contracts Finder within 24 hours of the expiry of the 48 hour period.
This means that contracting authorities are going to have to keep a very close eye on the automatic notifications received from the OJEU office. It is not clear what will happen where the contract notice is published in the Saturday edition of the OJEU as it is unlikely that contracting authorities will be in a position to send Contracts Finder information out and for it to be published within 24 hours.
It is also worth noting that this requirement to publish Contracts Finder information applies where a contracting authority publishes a “contract notice” in the OJEU. There is no mention of this requirement where a sub-central contracting authority publishes a “PIN as a call for competition”.
Where a contracting authority sends a contract award notice to the OJEU office then it must also publish information about that award on Contracts Finder.
As a minimum, the information must (except where withholding information is permitted under the rules) include the information listed at Regulation 106:
….but you cannot include information on Contracts Finder which is not in the OJEU contract award notice.
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.
Contracting authorities cannot publish information on Contracts Finder before they are permitted to do so under the rules on publication set out in Regulation 52. The date from which they are permitted to publish the information on Contracts Finder starts to run from the date of the confirmation from the OJEU office that they have received the contract award notice (“confirmation of receipt of the contract award notice”). There are two triggers:
Trigger 1: When the contract award notice is published in the OJEU within 48 hours of the confirmation of receipt of the contract award notice then information can be published on Contracts Finder after the date of the OJEU contract award notice publication.
Trigger 2: When the contract award notice is not published within 48 hours of the confirmation of the receipt of the contract award notice then the information can be published on Contracts Finder after the expiry of that 48 hour period.
Information note on trigger dates
The rules on when the contracting authority must publish the information on Contracts Finder are complicated because you have to look at both the “national” rules in Regulations 106(1) and 108(4) and Regulations 52(3) & (4) which apply to all EU contracts.
Regulation 106(1) refers to the 24 hour time period for publication at the start of the procurement process. Regulation 108(4) refers to publication within a “reasonable time” at the end of the procurement process. That time periods run from the date when the contracting authority is permitted, under the EU rules, to publish information at a national level.
The starting assumption is that publication in the OJEU will happen first. However, the OJEU office has up to five days to publish notices. Five days can be quite a long time in terms of the overall procurement timetable so there are provisions permitting publication at a national level within shorter timescales. Regulations 52(3) & (4) set out when contracting authorities are permitted to publish information at national level.
You must publish the information listed above on Contracts Finder when you are advertising the establishment of a framework agreement.
You must also publish the information listed above on Contracts Finder when you award contracts under a framework agreement.
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.
It is not entirely clear whether the requirement applies to all contracts awarded under a framework agreement or whether it only applies to contracts which are over the relevant EU thresholds.
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