Public Contracts Regulations 2015 - Regulation 67

Regulation 67 - Contract award criteria

Regulation 67 establishes the way that contract award criteria are to be developed and used by contracting criteria when awarding contracts. The Regulation is very descriptive and provides a number of helpful pointers for contracting authorities (paragraphs 3 and 5). Overall the Regulation seems to be a reasonable attempt to an "holistic"* view of what should constitute an award criterion, clarifying what can and cannot be used for awarding contracts. Gone are the days of the clear cut distinctions between most economically and lowest price as the two main ways of awarding contracts. Albert's long take on award criteria is here.

The main rule of Regulation 67 is that pretty much anything can constitute an award criteria, as long as it is connected with the subject matter of the contract (paragraph 2) and it does not destroy competition (paragraph 7). This includes any element from the life cycle of what is being bought including production processes.

It is noteworthy that price is still considered to be an award criterion, it is drafted in such a way that appears to imply a secondary place in the grand scheme of awarding contracts in comparison with other award criteria. Having said that, paragraph 1 states that contracts shall be awarded on the basis of the most economically advantageous tender "assessed from the perspective of the contracting authority". Looking at all paragraphs, my take is that price only is still possible as part of this new more holistic approach to contract award. It is not mentioned explicitly but it is not forbidden either. Paragraph 2 establishes that either price or cost can be used to identify the best bid. I suspect "price" replaces the old price-only way of awarding contracts.

*It is so holistic that environmental and social considerations get a mention on paragraph 2. As long as they are connected with the subject matter of the contract...which is a compromise I can live with and certainly much better than opening the floodgates by allowing award criteria of any type disconnected from the subject matter of the contract. Now for those contract performance obligations...

PS: Personally I never understood how people read Lianakis as not allowing experience to be used during the award stage. For me it was reasonably obvious where the CJEU wanted the boundary to be: general staffing info should go on selection, human resources (including their characteristics, ie experience) to be applied to the actual contract go into award stage. Now the downside of using human resources experience at the award stage is that the staff mentioned there should actual do the contract or else we're in front of a bait and switch situation. I wonder how many contracting authorities are i) aware of this tactic and ii) willing to rock the boat during contract performance accordingly. How would you feel if the steel of a certain grade that went into a tender then was replaced by a cheaper, weaker one during the performance? Right.

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