Public Contracts Regulations 2015 - Regulation 27

Regulation 27 - Open procedure

Regulation 27 transposes Article 27 of Directive 2014/24/EU into England, Wales and Northern Ireland. This Regulations establishes some of the rules applicable to the open procedure, particularly the time limits which have been shortened considerably from Directive 2004/18/EC.

The minimum time limit for tender reception in the open procedure is now 35 days (paragraph 2) from publication of the contract notice on the Official Journal. This deadline can be shortened to 30 days in case electronic communications are used (paragraph 6). It is unclear if this time limits are to be taken as calendar or working days, I would assume the first as there are other parts of the Directive where explicit reference to working days (ie, Article 34(5)). However, if memory does not fail me, for example in Portugal any time limit over 30 days coming from public law is to be taken as working days unless stated otherwise.

Contracting authorities are authorised to shorten the duration of the tender period to only 15 days in two situations. First, if there is urgency (paragraph 5) and second in case a prior information notice was used to advertise the forthcoming contract opportunity. It is only possible to use this reduction however in case the prior information notice includes all the information that a contract notice needs to provide insofar as said information was available to the contracting authority at that date.

I see the "information available at the date of putting out the prior information notice" test as a critical pain point of the new regime. In my view it gives a wide margin of discretion to the contracting authority to put out PINs as soon as it knows it will need to carry out a contract even before fleshing out all the details needed for a contract notice. There is no downside to do this (for the contracting authority, that is) nor any clear safeguard to limit the temptation of gaming the system this way.

Although I am generally in favour of shorter timescales (we no longer jump into our horsecarts to go to the post office...), there is another problem I anticipate with this PIN + 15 days approach. In case a contracting authority and a supplier have a very close relationship this can be easily used to artificially restrict competition as effectively the rest of the market will have only 2 weeks to prepare the tenders. Yes, I know I'm being a cynic here, but I have spent long enough in practice dealing with suppliers and contracting authorities to know how the game is played.

Another issue I take with the open procedure is the need for the qualifying information to be supplied with the tender. In my view, they should be kept entirely separate and in case that the qualifying information is analysed before the tenders, it should be done so by officers not involved in marking tenders. My reservations are due to the risks posed by confirmation bias that predicts the analysis of the bidders subjective quality will have an impact in how the tenders are marked. In other words, if a procurer scores a tenderer highly, it is likely its tender will also be scored highly afterwards and vice-versa. That is one of the reasons why we academics do blind marking.

There are other novelties surrounding the open procedure, in particular the possibility of only analysing the qualifying information of the winner (of which I am a staunch supporter) but these will be dealt with when we get to the appropriate Regulations.

As with yesterday's entry, myself and Dr. Luke Butler from Bristol University have written about this here.

Albert's entry for today is here.