Publication of contract opportunities on Contracts Finder under Reg.110 Public Contracts Regulations 2015

Reg.110 of the Public Contracts Regulations 2015 (PCR2015) creates an obligation to publish contract opportunities on Contracts Finder that extends to almost all contracts of a value higher than £10,000 or £25,000, except NHS and education-related contracts (see reg.109 for coverage of obligation and Pedro's remarks here).

Reg.110(5)(a) clarifies that a contracting authority advertises an opportunity if it does anything to put the opportunity in the public domain or bring the opportunity to the attention of economic operators generally or to any class or description of economic operators which is potentially open-ended, with a view to receiving responses from economic operators who wish to be considered for the award of the contract. 

Reg.110(5)(b) builds on the clarification and adds that, accordingly, a contracting authority does not advertise an opportunity where it makes the opportunity available only to a number of particular economic operators who have been selected for that purpose (whether ad hoc or by virtue of their membership of some closed category such as a framework agreement), regardless of how it draws the opportunity to the attention of those economic operators.  

This seems odd, as the drafting of the provision seems to leave it entirely to the discretion of the contracting authority to decide whether to create an open competition through the advertisement of the contract opportunity, or to resort to a limited competition with a pre-determined group of economic operators [along the same lines, see here, although it is clear that reg.112 requires contract award information to be posted on Contracts Finder, regardless of whether the below-threshold contract was initially advertised there or not, so the discretion is only on ex ante publication].

From the perspective of regulating contracts awarded below EU thresholds in a way that ensure competition leading to value for money, this seems to allow contracting authorities a large degree of discretion to continue with less than fully transparent procurement practices based on lists of preferred suppliers or similar arrangements [for discussion, see L Butler, 'Below threshold and Annex II B service contracts in the United Kingdom: A common law approach', in R Caranta and D Dragos (eds) Outside the EU Procurement Directives—Inside the Treaties?, vol. 4 European Procurement Law Series (Copenhagen, DJØF, 2012) 283,295 ff]. 

In my view, this may fall short from ensuring that procurement is truly competitive and that SMEs actually have access to public contracts, and the system should be refined to determine when the contracting authority can avoid the obligation to publish a contract opportunity. Moreover, in case a specific procurement is of cross-border interest, and despite the fact that it remains below EU thresholds, an absolute absence of ex ante transparency could result in an infringement of EU law (as discussed in more detail regarding reg.114 PCR2015).

In general terms, the publication regime in reg.110 PCR2015 is fundamentally equivalent to that mandated by reg.106 PCR2015 for contracts above thresholds and is subjected to the same guidance. When contracting authorities publish contract opportunities through Contracts Finder, they must also provide electronic access to the tender documents in terms equivalent to the requirements of reg.22 PCR2015 [reg.110(12) and ff].

Interestingly, one of the particular requirements of this obligation to publish is that the contracting authority needs to determine the time by which any interested supplier must respond if it wishes to be considered [reg.110(8)(a)], and the time shall be such as to allow the economic operators a sufficient but not disproportionate period of time within which to respond [reg.110(9)]. 

In the guidance, it is clarified that the time period must be sufficient to enable interested suppliers to respond to the opportunity and proportionate to the value of the procurement. In more detail, it is indicated that where the contracting authority is seeking a tender response, it is recommended that the minimum time required to submit a tender response is 10 working days.