Public Contracts Regulations 2015 - Regulation 80

Regulation 80 - Rules on the organisation of design contests and the selection of participants

Regulation 80 establishes the rules for organising design contests covered by Part 8. Contrary to other provisions which claim to lay down principles when really they impose rules (I am looking at you Regulation 76...), Regulation 80 lays down principles while claiming to establish rules.

Generally, the idea of this Regulation is that the various regular procedures are to be used with the necessary adaptations introduced by this Part, which so far have not been many. Furthermore we will not find many adaptations in this Regulation either.

Paragraph 2 forecloses the possibility of a contracting authority limiting participation on a design contest to a territory or part of a territory or the nature of the economic operator. My view is that either are not strictly needed as the general principles of equal treatment and non-discrimination would be enough.

As for paragraphs 3 and 4 they are very much in line with pre-existing principles as well: in case of numbers being limited, the selection criteria need to be clear and non-discriminatory and the total number of candidates to be selected enough to ensure competition. As I said above, principles, not rules.

Public Contracts Regulations 2015 - Regulation 78

Regulation 78 - Scope of Section 8

Section 8 regulates how design contests are to be used within public procurement. Regulation 78 defines how the thresholds are calculated for two types of design contests. The first one is a design contest organised as part of a procedure leading to the award of a public service contract, with the second a procedure with payments or prizes for participants. In reality, there is no reason why both cannot happen in the same procedure as admitted in paragraph 2.

For design contests of the first type, the threshold calculation shall take into account the VAT of the public service contract, including prizes and payments. This approach appears clear and easy to understand. 

Design contests of the second type are more complex however. According to paragraph 3, if the contracting authority states in the design contest notice that it plans to award a services contract via a negotiated procedure, then the threshold calculation shall take into account the estimated costs of the final public service contract as well as the prizes and awards.

I usually do not give much importance to design contests as they tend to be uncommon and detached from the actual procurement procedure for the main contract (at least that's my perception). The other day I was reading a blogpost from a designer complaining that there were plenty of "free" design contests for logo and image design but then the expensive implementation contracts were always awarded without competition to big name studios.

Having said that, on the one hand, this Regulation refers explicitly to subsequent contracts and can perhaps force the disclosure by the contracting authority of its real intentions. On the other hand, design contests are becoming ever more popular for the development of innovative solutions like the ones run by CityMart on the behalf of many European cities. I stand by that for the designing of innovative solutions matched with a procurement of goods/services would be better served by an innovation partnership.

It is interesting to note that the Regulation appears to ignore other types of design contests, namely ones that could be conceived for the subsequent purchases of goods or works. That is certainly the case for the first design contest type which refers specifically to public service contracts. However, in what regards the second type of paragraph 1(b), it would seem at first glance that any contract type might be covered. However, paragraph 3 states explicitly that the threshold calculation is done in accordance with the estimated value of the future public services contract. What about the others then?

Links I Liked [Public Procurement]

1. Nice podcast about public procurement, from 2014. And no, it's not mine. Speaking of which, episode #3 with Frank Brunetta (Canadian Procurement Ombudsman) is now up.

2. The weird and wonderful world of local authority procurement. My Society looks like a very interesting project.

3. New Mistery Shopper results. And more importantly, apparently compliance is now mandatory for some (all?) contracting authorities in England and Wales since the Small Business Enterprise and Employment act came into force (Regulation 41). Also known as "assisting investigations." Oh, the euphemisms...

4. The World Bank is finally disclosing the identity of procurement contract winners. Say what you may about disclosing too much information after a tendering procedure, but not even disclosing the identity of the winning bidder smells beyond fishy. More about public contracts awardees information here (speculative).

5. Porto jumped into the bandwagon of "procurement infused" design contests. I am a sucker for innovation initiatives like this, but my usual concerns remain: i) intellectual property; ii) lock in; iii) design contests are not the right approach as they split R&D from procurement. Website for project here (Portuguese only).