As discussed in relation to regs. 53 and 28 of the Public Contracts Regulations 2015 (PCR2015), there has been unrest in the UK public procurement practitioner community derived from an assumption that new procurement rules required contracting authorities to disclose absolutely all contract documents in full and final form when they first published a notice calling for competition for a specific contract.
My preliminary view was that such strict reading of reg.53(1) PCR2015 was unnecessarily overcautious and that contracting authorities could carry on disclosing tender documents in a staggered manner provided they complied with general principles of transparency and equal treatment, and they made sure that no interested undertaking or tenderer was placed at a disadvantage (see here).
The Crown Commercial Service (CCS) has now published Guidance on e-Procurement and electronic communications that, in my view, supports this flexible approach and should reassure contracting authorities that the new rules preserve the level of flexibility existing under the pre-2014 Directives. The key to that flexibility stems from a reasonable and dynamic approach to the concept of 'procurement documents', which the CCS takes to provide
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.
Such interpretative approach is well suited to a functional interpretation of the general rules in the PCR2015 (and Directive 2014/24, by implication), which adjusts the meaning of concepts and rules to the operational requirements of each of the specific procedures they apply to. This seems particularly clear in this passage:
... for procedures involving negotiations, or two stage process, the
contracting authority would need to publish all the documents that are available so the
market could make the decision on whether to express an interest or not. In construction
for example, detailed specifications are normally not available until further into the
procurement process and therefore those documents would not be required to be
published at the advert stage. However the procurement documents that explain what
the final output would be, volume/size, any specific specialities etc would be required at
advert stage as the supplier needs them so they can make the decision on whether to
express an interest or not, and whether they would have the capacity and capability to
do the work, and if not time to start preparing to build that capacity/capability. These
documents would then be added to as more detailed information is developed.
I think that this guidance should be welcome and that the discussion can be left behind, as it seems clear that the interpretation of the rules is not going to be as unreasonable and tight as some initially feared.