Public Contracts Regulations 2015 - Regulation 28

Regulation 28 - Restricted procedure

Regulation 28 transposes Article 28 of Directive 2014/24/EU on the restricted procedure. As with the open procedure we analysed yesterday, most novelties are related to shortening timescales.

The general rule is that economic operators will have 30 days to submit their request for participation, and if selected, another 30 days to submit the tenders. However, similarly to Regulation 27 and the open procedure, there are a number of exceptions that allow for a reduction in timescales. For example, if electronic communications methods are used, then the deadline for submitting tenders can be reduced to 25 days, but such reduction is not applicable to the request for participation.

In addition, in case a prior information notice containing all the required information was used (please my reservations about this on yesterday's post), then the timescales for submitting tenders can be reduced to 10 days.

In case the contracting is a sub-central organisation such as a local council, then it can agree with the selected tenderers any timescale appropriate as long as all tenderers are happy with the new deadline and are treated equally. In case no agreement is possible, the contracting authority is still authorised to establish a minimum of 10 days for tenders to be received. Although I am in favour of the first option, I do not agree with the second as it does not depend on the contracting authority providing the necessary information in the PIN notice. As mentioned yesterday, any economic operator with privileged access to the contracting authority will have a strong advantage over the competition and proving it would be close to impossible.

Finally, in cases of urgency, the timescales can be reduced for participation requests to 15 days and the actual tenders to 10 days. In a system where qualifying information should be standardised, made available online and easy to access I am puzzled by the fact that a longer timescale is given to the requests for participation in comparison with tender preparation.

What does this all mean for England, Wales and Northern Ireland?

Over the last decade the restricted procedure was by far the most popular procedure in the UK (I suppose there is no difference in Scottish practice) and it is the only EU country where the restricted procedure is more popular than the open. The problem with the restricted procedure is that the transaction and opportunity costs are higher than the alternative open procedure. Furthermore, adopting a selection stage where only the X best will be select makes life unduly difficult for smaller suppliers.

These problems for smaller suppliers are compounded by the reasonable easy access contracting authorities now have to shorten timescales: ask any small business what they think about having fewer days to prepare a request for participation or a tender and the answer will usually be a complaint. While I am in general in favour of shorter timescales, it is important to understand there are no free lunches and it implies trade offs.

It is noteworthy that while the Regulations (and the Directive...) offer tight timescales for economic operators to participate in public procurement, which can be understood in a world where everything moves faster, there are no similar obligations imposed on the contracting authorities to become more efficient and faster when undertaking procedures.