Restricted procedures under Reg. 28 Public Contracts Regulations 2015

Reg.28 of the Public Contracts Regulations 2015 deals with restricted procedures and transposes the rules in Art 28 of Directive 2014/24. As Pedro has indicated, it has a similar content as reg.27 PCR2015 regarding the open procedure (ie focusses on minimum time limits and their potential shortening) and, consequently, it is open to similar comments. I do not have anything to add on that front.

In my view, there are two issues that are not explicitly regulated in reg.27 PCR2015 that require careful consideration by contracting authorities. 

First, given that resorting to this procedure increases the minimum time needed to award a contract if compared to an open procedure (from a bare minimum of 25 v 15 days, to a maximum difference at the longest end of 35 v 60 days), the decision to resort to a restricted procedure instead of an open procedure should take into account the potential gains (in terms of reduced evaluation costs, but not in terms of qualitative selection) and the potential losses (particularly in terms of competition if the number of invited tenderers is limited after the first stage), and be proportionate.

Second, restricted procedures may be used efficiently in cases where not all contract documents are ready at the time of the call for tenders. This is particularly the situation in the procurement of works, where the call for tenders may be published before the detailed plans and specifications are ready, so that finalisation of the project and selection of the tenderers is run in parallel to win time. 

In my view, this remains possible and is probably the preferable option for the procurement of complex projects without negotiation. Some may express concern in view of the rules on disclosure of documents under reg. 53 PCR2015 (to be commented in due course), but I do not think that such rule can impose any restriction on this use of restricted procedures. Even if this implies advancing some comments that may be more pertinent regarding reg.53 PCR2015, these are the reasons I can provide for this approach, which come from an exchange of emails with a practitioner (if authorised, I will disclose its identity).
Firstly, I think that nothing in the EU Directive has changed the documentary requirements as such (and, hence, nothing in the PCR2015 by implication: see explanatory memorandum, where it is clearly indicated that reg.53 is a copy-out of art 53 Dir 2014/24). All provisions on electronic communication are ... about process/technology but not substance (see recital 52 of Dir 2014/24). Hence, they should not alter existing lawful practice.

Secondly, from a strictly technical perspective in terms of statutory interpretation of reg.53 PCR2015, I think there is a good systematic point to support this interpretation in reg.53(6) itself, as it clearly shows that further documentary disclosure (beyond the tender documents initially made available) is possible—up until 6 days before tender submission. In my view, given the general possibility to disclose detailed technical plans, drawings and specifications not originally included in the tender documents, the issue then rests on two points: transparency and equal treatment.

On transparency, if the contracting authority clearly in the pre-PQQ contract notice that the detailed plans will be made available only to shortlisted tenderers, this should create no problems provided that the information disclosed at that stage allows potentially interested bidders to have a rough idea of the project and its requirements, and to complete satisfactorily the PQQ phase. This was clearly the position of the ECJ: ‘all technical information relevant for the purpose of a sound understanding of the contract notice or the tendering specifications must be made available as soon as possible to all the undertakings taking part in a public procurement procedure’ [Case T-345/03 Evropaïki Dynamiki v Commission (CORDIS) [2008] ECR II-341 145. See also Case T-297/05 IPK International v Commission [2011] ECR II-1859 124]. 

On equal treatment, ... the key issue involves the need to make sure that no undertaking is advantaged (because they are involved in the planning, fundamentally) as ‘the unequal treatment consisting in a delay in making certain technical information available to the tenderers, with the exception of the successful tenderer, constitutes a procedural defect’ [Case T-345/03 Evropaïki Dynamiki v Commission (CORDIS) [2008] ECR II-341 160 and ff. See also Case T-50/05 Evropaïki Dynamiki v Commission (ECMS) [2010] ECR II-1071, where delays in disclosure of source code to tenderers other than the incumbent are discussed].

All that is just to indicate that the contracting authority should clarify why it is necessary and proportionate for it to use this two-stage disclosure process (expediency, cost, etc – the fact that it is a consolidated practice under the pre-existing regulations may also help) and then avoid restricting access to any information that would have allowed specific tenderers to participate (such as the need to carry out specialist work, for instance), or that advantages specific undertakings. If those risks are covered, I see no problem in ... carrying on as they used to under the PCR2006 [ie, to use the restricted procedure to carry out a two part procurement process that enables the contracting authority to progress procurement whilst still working on the drawings and detailed specifications etc. that will form the tender documents after invitation].