Regulation 28 – Restricted procedure
Regulation 28 transposes Article 28 of Directive 2014/24/EU on the restricted procedure. As with Regulation 27, most novelties are related to the of shortening of timescales. Although timescales are shorter than in the past they are still higher longer than those of the open procedure.
As the restricted procedure can be used as an alternative procedure to the open, it is appropriate to start our commentary with some general suggestions how contracting authorities should guide their decision-making in the choice between them.
First, given that resorting to the restricted procedure increases the minimum time needed to award a contract if compared to an open procedure (from a bare minimum of 25 v 15 days, to a maximum difference at the longest end of 35 v 60 days), the decision to resort to a restricted procedure instead of an open procedure should take into account the potential gains (in terms of reduced evaluation costs, but not in terms of qualitative selection) and the potential losses (particularly in terms of competition if the number of invited tenderers is limited after the first stage), and be proportionate.
Second, restricted procedures may be used efficiently in cases where not all contract documents are ready at the time of the call for tenders. This is particularly the situation in the procurement of works, where the call for tenders may be published before the detailed plans and specifications are ready, so that finalisation of the project and selection of the tenderers is run in parallel to win time.
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 reductions 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, then timescales for tender submission 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 amwe are in favour of the first option, I we do not agree with the second as it does not depend on the contracting authority providing the necessary information in the PIN notice.
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 we are 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 we 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 selected 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 amwe are 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.
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
28.—(1) In restricted procedures, any economic operator may submit a request to participate in response to a call for competition by providing the information for qualitative selection that is requested by the contracting authority.
(2) The minimum time limit for receipt of requests to participate shall, subject to paragraph (10), be 30 days from the date on which—
(a) the contract notice is sent, or
(b) where a prior information notice is used as a means of calling for competition, the invitation to confirm interest is sent.
(3) Only those economic operators invited to do so by the contracting authority following its assessment of the information provided may submit a tender.
(4) Contracting authorities may limit the number of suitable candidates to be invited to participate in the procedure in accordance with regulation 65.
(5) The minimum time limit for the receipt of tenders shall, subject to paragraphs (6) to (10), be 30 days from the date on which the invitation to tender is sent.
(6) 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 (5) may be shortened to 10 days, provided that both of the following conditions are fulfilled:—
(a) the prior information notice included all the information required 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.
(7) Sub-central contracting authorities may set the time limit for the receipt of tenders by mutual agreement between the contracting authority and all selected candidates, provided that all selected candidates have the same time to prepare and submit their tenders.
(8) In the absence of such an agreement, the time limit shall be at least 10 days from the date on which the invitation to tender is sent.
(9) The time limit for receipt of tenders provided for by paragraph (5) may be reduced by 5 days where the contracting authority accepts that tenders may be submitted by electronic means in accordance with regulation 22.
(10) Where a state of urgency duly substantiated by the contracting authorities renders impracticable the time limits laid down in this regulation, they may fix—
(a) a time limit for the receipt of requests to participate which shall not be less than 15 days from the date on which the contract notice is sent, and
(b) a time limit for the receipt of tenders which shall not be less than 10 days from the date on which the invitation to tender is sent.