Public Contracts Regulations 2015 - Regulation 85/86/87

Regulation 85 - Scope of Chapter 5

Regulation 86 - Notices of decisions to award a contract or conclude a framework agreement

Regulation 87 - Standstill period

Chapter 5 is composed of only three regulations and as they are all interconnected we took the liberty of analysing the three together in the same entry instead of over various days. Regulations 86 and 87 contain the rules surrounding the standstill period and the award decision notices that are to be produced by the contracting authority. A contract/framework agreement subject to the Regulation 86 notice cannot be entered into until the standstill deadline has passed.

According to Regulation 86, each candidate or tenderer is entitled to be informed of the outcome of the procedure. For the losers, the notice is to include the information about the winner, as well as the characteristics and "relative advantages" of the winning tender (paragraph 2). For candidates excluded, there appears to be no need to provided the "relative advantages" but just the characteristics of the winner(s) (paragraph 4). In other jurisdictions, disclosing the price is something natural and perhaps the UK as a whole is moving in the direction of considering this "relative advantage" as commercial information that is not sensitive. In my view, price disclosure should be part of the cost of for suppliers to work in public procurement, although Albert probably begs to differ on this one.

Regulation 86 includes a few exemptions to the notice rule (paragraph 5). For example, if the contract/framework agreement was awarded without a prior publication of a contract notice, an exception that appears strange to me as it significantly reduces the possibilities of an aggrieved supplier to obtain redress. In addition, any contract awarded inside a framework agreement or a dynamic purchasing system is not subject to this notice and in consequence it is not subject either to a standstill period. Personally, I would prefer a standstill period on these as well. These are as much public contracts as the ones at the end of an open procedure, so why should suppliers have fewer rights just due to the process used?

As with previous regulations where tender information is to be released, the usual public interest/law enforcement/legitimate commercial interests restrictions and limitations are applicable here as well.

Regulation 86 notices are effectively what are traditionally called standstill notices. Once they are served, the contracting authority cannot enter into the contract/framework agreement for a certain period of time. The standstill duration depends on the method used to serve the notice. 10 days is the shortest period, available for electronic notices which I hope mean something a little bit more advanced than email but my hopes are not pinned very high as "facsimile" is included as an additional method. I am surprised that facsimile has been accepted as a notification method but not other cutting edge technologies such as the telex or telegraph. This 10 day standstill period only applies if all economic operators receive the notice via facsimile or electronic format.

If other notification methods are used, then the duration of the standstill is either 15 days since the remittance (!) of the notification or 10 days of the receipt by the last tenderer, whatever happens first. The civil law administrative lawyer in me screams in horror when seeing such a short deadline hanging on the remittance date and not the reception one. Yes, because never in the history of man has a postal service lost a letter...