Reduction of candidates, tenders and solutions under Regs. 65 and 66 Public Contracts Regulations 2015

Reg. 65 of the Public Contracts Regulations 2015 (PCR2015) transposes Article 65 of Directive 2014/24 on the rules applicable to the reduction of the number of otherwise qualified candidates to be invited to participate. Reg.66 PCR transposes art 66 Dir 2014/24 on the rules on reduction of the number of tenders and solutions. This is an area where the new rules fundamentally provide for continuity of the previous system.

Indeed, the content of Article 44(3) Directive 2004/18 has been moved to Art 65 of Dir 2014/24 and the content of Art 44(4) Dir 2004/18 has been moved to Article 66 of Dir 2014/24. There are no changes in these rules, other than some minor drafting changes and an update of the cross-references to other parts of the Directive.

Grosso modo, the rules continue to allow for contracting authorities to limit the number of candidates that they will invite to tender or to negotiate in procedures other than open (and negotiated without prior publication). In that case, they have to establish the minimum (and maximum) number of candidates they intend to invite (at least five in the restricted procedure and three in the competitive procedure with negotiation, in the competitive dialogue procedure and in the innovation partnership).

Contracting entities must ‘indicate, in the contract notice or in the invitation to confirm interest, the objective and non-discriminatory criteria or rules they intend to apply’ to short-list candidates [reg.65(2) PCR2015 and art 65(2) dir 2014/24]. Once the short-listing is completed, they must invite a number of candidates at least equal to the minimum number and where the number of candidates meeting the selection criteria and the minimum levels of ability is below that minimum, they may continue the procedure by inviting the candidates with the required capabilities but ‘the contracting authority shall not include economic operators that did not request to participate, or candidates that do not have the required capabilities’ [reg.65(8) PCR2015 and art 65(2) in fine dir 2014/24].

Similar rules apply to the reduction of the tenders to be negotiated or the solutions to discussed but, at any rate, in the final stage, the number arrived at shall make for genuine competition insofar as there are enough solutions, qualified candidates or tenderers [reg.66(2)PCR2015 and art 66 dir 2014/24].

By sticking to the same rules, the PCR2015 and Dir 2014/24 do not resolve the problems that, in my opinion, a strict interpretation of these rules may generate (such as short-listing that only leaves one tenderer out) [for discussion, see A Sanchez Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 312-315]. Pedro shares some similar concerns.