Prior information notices under Reg. 48 Public Contracts Regulations 2015

Reg. 48 of the Public Contracts Regulations 2015 (PCR2015) transposes Article 48 of Directive 2014/24 on the subject of publication of prior information notices (PIN). 

Contracting authorities can resort to PINs to make known their intentions of planned procurements, and PINs can cover a maximum period of 12 months from the date on which the notice is transmitted for publication, except in the case of public contracts for social and other specific services, where the PIN may cover a period which is longer than 12 months. 

The rules in reg.48 PCR2015 are concerned with the content of the PIN and the possibility to publish it in either the buyer's profile or/and the Official Journal of the European Union. Technically, they do not deserve much comment.

However, despite Pedro's fondness for the use of PINs, my concern is that the use of PINs can have a significant effect on the level of transparency in the market and, consequently, on the likelihood of collusion between tenderers [for discussion, see A Sanchez Graells, "The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives" (November 2013) University of Leicester School of Law Research Paper No. 13-11].

 Announcing every 12 months the contracting opportunities that will arise facilitates the split of contracts between them, and even allows them to plan complex allocation strategies that imitate randomness, hence reducing the likelihood of detection. Consequently, contracting authorities would be well advised to use PINs carefully and not to obsess with them with the simple object of reducing the minimum time limits they need to respect for specific contracts. 

Using PINs with shorter durations, or reserving the flexibility to procure in terms and periodicity different than those announced in the PIN could also be useful tools. In the end, publishing a PIN does not bind the contracting authority to actually carry out the procurement, and the possibility to tender contracts no included in PINs is always available. Hence, contracting authorities should avoid situations of absolute foreseeability of their procurement projects for the next 12 (or even 6) months, and only use them where alerting the market of a particularly relevant opportunity or a significantly complex project is coming up, so that they can express interest and make sure that they have the resources needed to tender in due course.