Regulation 27 – Open procedure

Commentary

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

Given the open nature and the one-stage design of the open procedure, any interested economic operator may submit a tender in response to a contract notice ([reg.27(1) PCR2015)], and the tender shall be accompanied by the information for qualitative selection that is requested by the contracting authority ([reg.27(3) PCR2015)]. 

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 but we would assume the first as there are other parts of the Directive where explicit reference to working days (ie, Article 34(5)).

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.

Consequently, the range of minimum time limits applicable to open procedures will be of 15-30-35 days, depending on the circumstances of the case ([see Annex B of the Crown Commercial Service, A brief guide to the EU Public Contracts Directive (2014, updated Feb 2015))]. This does not mean that this is always or necessarily the adequate time span that contracting authorities should allow for tender preparation, and that time limit should be set in accordance with the principles of proportionality and competition ([see reg.18 PCR2015reg.18 PCR2015).

We consider the “information available at the date of putting out the prior information notice” test as a critical pain point of the new regime. In our 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 shorter timescales are in general an improvement over the previous regime, the PIN + 15 days approach may lead to unintended consequences. 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. This would be a clear subversion of the rules and their objective, but one that would be difficult to police in practice.

Another issue with the open procedure is the need for the qualifying information to be supplied with the tender. In our 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. Our 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.

Proposed citation: Albert Sanchez-Graells & Pedro Telles, (2016) Commentary to the Public Contracts Regulations 2015, available at: www.pcr2015.uk.

Last modified: September 5, 2016 by Pedro Telles

27.—(1) In open procedures, any interested economic operator may submit a tender in response to a contract notice.

(2) The minimum time limit for the receipt of tenders shall, subject to paragraphs (4) to (6), be 35 days from the date on which the contract notice is sent.

(3) The tender shall be accompanied by the information for qualitative selection that is requested by the contracting authority.

(4) Where contracting authorities have published a prior information notice which was not itself used as a means of calling for competition, the minimum time limit for the receipt of tenders as laid down in paragraph (2) may be shortened to 15 days, provided that both of the following conditions are fulfilled:—

(a) the prior information notice included all the information required for the contract notice in section I of part B of Annex V to the Public Contracts Directive insofar as that information was available at the time the prior information notice was published;

(b) the prior information notice was sent for publication between 35 days and 12 months before the date on which the contract notice was sent.

(5) Where a state of urgency duly substantiated by the contracting authority renders impracticable the time limit laid down in paragraph (2), it may fix a time limit which shall be not less than 15 days from the date on which the contract notice is sent.

(6) The contracting authority may reduce by 5 days the time limit for receipt of tenders set out in paragraph (2) where it accepts that tenders may be submitted by electronic means in accordance with regulation 22.