Time limits under Reg. 47 Public Contracts Regulations 2015

Reg. 47 of the Public Contracts Regulations 2015 (PCR2015) establishes general requirements concerning the setting of time limits, beyond the minimum established in regs. 27 to 31 PCR2015 for each specific procedure, in accordance with Article 47 of Directive 2014/24.

Generally, and in order to comply with the principle of proportionality [reg.18(1) PCR2015], contracting authorities shall take account of the complexity of the contract and the time required for drawing up tenders when fixing the time limits for the receipt of tenders and requests to participate, which in any case cannot result in time limits below the minimum set out in regs. 27 to 31 PCR2015 [reg.47(1)]. This is a logical requirement and contracting authorities will have to pay special attention to the setting of time limits when there are potential risks of discrimination between potentially interested tenderers or candidates, either because some of them where involved in preliminary market consultations [reg.40 PCR2015], or otherwise. 

In that regard, it bears reminding the specific requirement that  contracting authorities take appropriate measures to ensure that competition is not distorted by the participation of candidates or tenderers previously involved, which includes the fixing of adequate time limits for the receipt of tenders [reg.41(2)(b) PCR2015]. As Pedro stressed in his critical remarks, "the problem is not the time per se as all economic operators would have to comply with the minimum time limits (although it would have been preferable to just block the use of accelerated or time-reduced procedures) but the fact one of the economic operators had access to information before everyone else and influenced the design of the tender documents". Hence, in my view, the time limit will have to be complemented with substantive assessments to ensure that additional delay (if any) has actually neutralised the first "knower" advantage.

Reg.47(2) PCR2015 establishes specific rules for time limits concerned with procedures that require site visits or on-the-spot inspections, in which case  the time limits for the receipt of tenders shall be fixed so that all economic operators concerned may be aware of all the information needed to produce tenders. In any case, and implicitly acknowledging that the 'standard' procedure regulated in the PCR2015 and Dir 2014/24 does not include such visits or inspections, reg.47(2) PCR2015 mandates that  the time limits set in these cases shall be longer than the minimum time limits set out in regs. 27 to 31 PCR2015.

Regs.47(3) to (6) PCR2015 finally establish rules concerning extension of time limits. It first determines two cases where contracting authorities must extend the time limits for the receipt of tenders so that all economic operators concerned may be aware of all the information needed. Reg.47(3) PCR2015 includes cases: (a) where, for whatever reason, additional information requested by an economic operator in good time, is however not supplied at the latest 6 days before the time limit fixed for the receipt of tenders [or 4 days in case of accelerated procedures, reg.47(5)]; and (b) where significant changes are made to the procurement documents.

In my view, the contracting authority always has the possibility to extend time limits for good reason, provided it does so in a way that is non-discriminatory and does not affect competition. For instance in case some tenderer has submitted a tender, an extension should imply the possibility for that tenderer to submit a revised tender in order to allow it to take advantage of the extension.

Reg.47(4) PCR2015 requires that the length of the extension be proportionate to the importance of the information or change, and reg.47(6) PCR2015 clarifies that contracting authorities are not required to extend the time limits where additional information has either not been requested in good time or its importance with a view to preparing responsive tenders is insignificant. 

Consequently, contracting authorities always have the possibility to make value judgments regarding the actual need or an extension of the initial time limits. In my view, however, in case of doubt (or explicit and reasonable request from tenderers), they should always adopt the default position of granting extensions (if nothing else, to avoid litigation risks, but more importantly, to avoid actually disadvantaging certain competitors).