Publication of information on Contracts Finder about contracts awarded under Reg. 108 Public Contracts Regulations 2015

Reg.108 of the Public Contracts Regulations 2015 (PCR2015) expands the obligations of domestic publication on Contracts Finder of reg.106 to contract award notices. Following a very similar structure, reg.108(1) requires contracting authorities to have a contract award notice published on Contracts Finder within a reasonable time [reg.108(4)], where: (a) they send a contract award notice (see reg.50 and reg.75(3) PCR2015) to the EU Publications Office for publication; or (b) award a contract based on a framework agreement.

This last situation is odd because it imposes a requirement of transparency that goes beyond the standard of the EU rules, which the UK (Eng & Wales) legislator consciously decided to limit to its minimum expression in reg.50 PCR2015. It is worth reminding that Reg.50(4) PCR2015 adjusts the requirements for the publication of contract award notices to the working of framework agreements, and determines that contracting authorities shall not be bound to send a notice of the results of the procurement procedure for each contract based on such an agreement, and that this is meant to simplify the operation of the framework agreement once it is in place.  

Now, with the requirement of reg.108(1)(b) PCR2015, the rules go to the opposite extreme and impose a level of 'domestic' transparency in the award of contracts within framework agreements that can create a very dangerous excess of transparency (see discussion here). More importantly, this also creates a ridiculous inconsistency in the level of publication at EU and domestic level. Bearing in mind that all these notices are published online and in English, it is really hard to understand what would be the actual point of imposing different publication requirements when it comes to the OJEU and Contracts Finder. In any case, it would be very positive for the Cabinet Office to develop soon the mechanism of automatic feed from the OJEU that reg.108(7) and (8) foresee [in the same terms as reg.106(4) and (5)], so that these incongruities get resolved at an operational level (Pedro agrees).

Focusing on the content of these notices, reg.108(2) PCR2015 determines that the contracting authority shall cause at least the following information to be published on Contracts Finder: the name of the contractor; the date on which the contract was entered into;and the value of the contract. This deviates from reg.50(2) PCR2015, whereby the contract notices sent to the OJEU need to contain the information set out in part D of Annex 5 to Directive 2014/24. As mentioned in relation to reg.106 PCR2015, this apparent limitation of the volume of information that needs to be disclosed does not make sense, at least for contracts above EU value thresholds.

More interestingly, reg.108(3) PCR2015 stresses that the contracting authority may withhold information from publication where its release would impede law enforcement or would otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or might prejudice fair competition between economic operators. In my view, this should exclude almost automatically any publication of contract notices under reg.108(1)(b), unless they are disclosed in a manner that ensures delayed and grouped (quarterly) reporting of the intra-framework award/call-off decisions, along the lines of what Art 50(3) Dir 2014/24 and reg.50(5) PCR2015 establish for dynamic purchasing systems. In my view, this would not be incompatible with the requirement of reg.108(4), whereby contracting authorities shall comply with the obligation to publish notices within a reasonable time [reg.108(4), see below].  

In that regard, reg.108(5) further clarifies that, where a contracting authority sends, or intends to send, a contract award notice to the EU Publications Office for publication, it shall not cause the information to be published on Contracts Finder earlier than the time at which the contracting authority becomes entitled to publish the notice at national level in accordance with reg.52(3) and (4). Finally, reg.108(6) requires contracting authorities to have regard to any guidance issued by the Minister for the Cabinet Office on the form and manner in which the information is to be published on Contracts Finder; and what is a reasonable time. Such guidance is available here. Interestingly, it has clarified that "the information [should] be published no later than 90 calendar days after the contract award date".