Public Contracts Regulations 2015 - Regulation 75

Regulation 75 - Publication of notices

Regulation 75 defines the rules regarding the publication of notices for contracts awarded under the "light touch regime" introduced by Regulation 74.* These rule cover both ex ante and ex post transparency and all notices have to comply with the rules of Regulation 51 (ie, be sent in electronic format to the EU Publications Office)

Paragraph 1 provide contracting authorities with two different  ex ante publication options. First, they can advertise via a contract notice with all the information contained in Annex H Part 5 of the Directive 2014/24/EU. Second, they can put out a prior information notice which contains the specific types of services to be procured and containing the information from Part I of Annex V of the Directive 2014/24/EU. Furthermore, such PIN notice is to be published "continuously" (???) and it needs to indicate that no further publication will be done afterwards and that interested parties are invited to express their interest in writing. From the draft of the paragraph, it appears that if a PIN notice is used then the contracting authority is precluded from making a call for competition via a regular contract notice and are bound to proceed with only the economic operators which put themselves forward.

Regulation 74 also provides rules for the ex-post transparency. Contracting authorities are bound to put out a contract award notice similar to the ones needed for any other contract covered by the Directive 2014/24/EU. In a concession to flexibility it is possible to group the contract award notices in a single batch within 30 days of the end of each quarter.

*Yes, I am aware I jumped Regulation 74 but I need to consider fully what I have to say about it so will come back to it either tomorrow or Friday. It's complicated.

Public Contracts Regulations 2015 - Regulation 48

Regulation 48 - Prior Information Notices

In Regulation 48 we can find the information related with the use of prior information (PIN) notices by contracting authorities. PIN notices allow contracting authorities to inform the market in advance of what it intends to buy in the future. They can have three main functions. First, contracting authorities can use them to check the market and see what is available before launching a tender. Second, they can be used to reduce the timescales of a subsequent public procurement procedure in case certain requirements are met. Third, sub-central contracting authorities can use them effectively as contract notices. PIN notices are not new and personally I find it a shame that they are not used more often in public procurement. As they imply a lot of thinking ahead and horizon scanning I think this provides indirect evidence that those activities are not well ingrained into public procurement practice. On the other hand, in a universe full of PIN notices, cartels would have a lot of time to slice and dice their own markets.

According to paragraph 3, contracting authorities are given two options in what concerns the use of PIN notices: they can either send the PIN notice with full information for publication in the Official Journal or, instead, publish it locally (ie, nationally) on a buyer's profile. The first one needs to be done in accordance with Regulation 51 and the second with Regulation 52. In either case it seems that it is possible to achieve the timescale reductions in open and restricted procedures.

Having said that, in case the PIN is published "nationally" then at least some information will always have to be published on the Official Journal (ie the information that there is a PIN notice in the buyer profile...), thus begetting the question of why allowing PINs to published nationally in the first place, particularly as they can be used to reduce timescales, thus making life more difficult for foreign suppliers. Am I the only one thinking this is a loophole?

Sub-central contracting authorities can also use the PIN notice in lieu of a contract notice as long as it complies with the requirements set in paragraphs 5 and 6. In general we are talking about providing the information required in the contract notice. Two limitations apply in this situation however. First, it is only valid for procedures launched within 35 days and 12 months after the notice is published. Second, the notice must be published in full in the Official Journal, so contracting authorities are not authorised to publish it in full on a buyer's profile instead.

In yet another strange structure reversal the general rule covering the duration of PIN notices comes in paragraph 7 (12 months validity), after the special rule for sub-central contracting authorities mentioned above. Paragraph 8 includes as well a specific rule for social contracts, where the PIN may cover a period longer than 12 months. Personally I cannot see a reason why it would make sense for a PIN notice to be issued so earlier before the actual tendering. Well, maybe I do see one...