Regulation 110 – Publication of contract opportunities on Contracts Finder

Commentary

Regulation 110 defines the rules applicable to the publication of contracts covered by Chapter 8. Although the Regulation epigraph appears to indicate a focus on the publication of opportunities, the latter paragraphs cover as well additional steps to be taken by the contracting authority in case a notice is published in accordance with the Regulation.

In general, Regulation 110 tries to follow the logic adopted for the advertising of contracts covered by Part 2 while providing a wider degree of flexibility.

According to Regulation 110 any contract opportunity needs to be advertised on Contracts Finder and within 24 hours of it being published somewhere else (paragraphs (2) and (3)). For the purposes of this regulation, any “opportunity” to be awarded is covered and advertising techniques similar to the prior information notice of Regulation 48 are considered to be enough advertising (paragraph 7).

As for the information that needs to be included in the notice, it is required that a “sufficient but not disproportionate” timescale is provided (Paragraphs (8a) and (9)), to whom the answer is to be send and any requirements for participation.

As mentioned at the beginning of the commentary to this Regulation, the latter paragraphs impose additional requirements on the contracting authority in addition to the advertising – namely that it will have to make the relevant contract documents available on the internet for free and with full access (paragraph (12), unless there is a “relevant reason” as established by Regulation 53(3) and (4). This explicit cross-reference once more indicates the interest of the law makers to ensure as much similarity as possible between the requirements of Part 2 and these of Chapter 8.

The “relevant contract documents” are any documents which include information further to that available on the Contracts Finder notice and is intended by the contracting authority to be taken into account by economic operators wanting to participate (paragraph 15).

Finally, paragraph 16 concludes the Regulation by providing the Minister for Cabinet Office once more with a legal basis to issue guidance in the matters covered by this Regulation.

 

Last modified: December 9, 2016 by Pedro Telles

110.—(1) Paragraph (2) applies where a contracting authority advertises a contract award opportunity.

(2) In those circumstances, the contracting authority shall publish information about the opportunity on Contracts Finder, regardless of what other means it uses to advertise the opportunity.

(3) Where a contracting authority is required by paragraph (2) to publish information on Contracts Finder, it shall do so within 24 hours of the time when it first advertises the contract award opportunity in any other way.

(4) A contracting authority may publish on Contracts Finder information about a contract award opportunity even if the contracting authority does not advertise the opportunity in any other way.

(5) For the purposes of this regulation—

(a)a contracting authority advertises an opportunity if it does anything to put the opportunity in the public domain or bring the opportunity to the attention of economic operators generally or to any class or description of economic operators which is potentially open-ended, with a view to receiving responses from economic operators who wish to be considered for the award of the contract; and

(b)accordingly, a contracting authority does not advertise an opportunity where it makes the opportunity available only to a number of particular economic operators who have been selected for that purpose (whether ad hoc or by virtue of their membership of some closed category such as a framework agreement), regardless of how it draws the opportunity to the attention of those economic operators.

(6) In this regulation, “contract award opportunity” means the opportunity to be awarded a public contract by a contracting authority, regardless of how specific the opportunity is.

(7) For example, advertising by means of techniques similar to prior information notices used to call for competition under Part 2 amounts to the advertising of contract award opportunities even though the specific contracts that may in due course be awarded within the scope of such procurements are not identified individually in the advertising.

(8) The information to be published on Contracts Finder shall include at least the following:—

(a)the time by which any interested economic operator must respond if it wishes to be considered;

(b)how and to whom such an economic operator is to respond; and

(c)any other requirements for participating in the procurement.

(9) For the purposes of paragraph (8)(a), the time shall be such as to allow the economic operators a sufficient but not disproportionate period of time within which to respond.

(10) The contracting authority shall ensure that the information remains published on Contracts Finder until the time mentioned in paragraph (8)(a).

(11) Paragraph (10) does not apply where the procedure is, for any reason, abandoned before that time.

(12) Where a contracting authority publishes information on Contracts Finder under this regulation, the contracting authority shall—

(a)by means of the internet, offer unrestricted and full direct access free of charge to any relevant contract documents; and

(b)specify in the information published on Contracts Finder the internet address at which those documents are accessible.

(13) But paragraph (12)(a) does not require a contracting authority to provide such access where the access cannot be offered for a relevant reason.

(14) In paragraph (13), “relevant reason” means any reason which, in accordance with regulation 53(3) and (4), would have applied if the procurement had been covered by Part 2 and the relevant contract documents had been procurement documents.

(15) For the purposes of this regulation, a document is a relevant contract document if—

(a)it contains information about the opportunity which goes beyond the information published on Contracts Finder, and

(b)that information is intended by the contracting authority to be taken into account by those responding to the advertisement.

(16) In complying with this regulation, contracting authorities shall have regard to any guidance issued by the Minister for the Cabinet Office in relation to—

(a)the form and manner in which information is to be published on Contracts Finder;

(b)what is a sufficient but not disproportionate period of time for the purposes of paragraph (9).