Regulation 47 – Setting time limits

Commentary

Regulation 47 PCR2015 establishes general requirements concerning the setting of time limits, beyond the minimum established in Regulations 27 to 31 PCR2015 for each specific procedure, in accordance with Article 47 of Directive 2014/24/EU.

Generally, and in order to comply with the principle of proportionality (Regulation 18(1) PCR2015), contracting authorities shall take account of the complexity of the contract and the time required for drawing up tenders when fixing the time limits for the receipt of tenders and requests to participate. In any case these cannot result in time limits below the minimum set out in regs. 27 to 31 PCR2015 (Regulation 47(1)). Similarly to Regulation 46 and the consideration of the possibility to divide the contract into lots, it seems that the obligation is to take into account circumstances that could potentially require an extension of the time limits, but that the decision remains in the contracting authority’s sphere of discretion. Other than the specific cases from paragraphs 2 and 3, we do not believe that such obligation includes the actual extension of the time limits to receive tenders in all cases. This is a logical requirement and contracting authorities will have to pay special attention to the setting of time limits when there are potential risks of discrimination between potentially interested tenderers or candidates, either because some of them where involved in preliminary market consultations (Regulation 40 PCR2015), or otherwise. 

In that regard, it bears reminding the specific requirement that  contracting authorities must take appropriate measures to ensure competition is not distorted by the participation of candidates or tenderers previously involved, which includes the fixing of adequate time limits for the receipt of tenders (Regulation 41(2)(b) PCR2015). As we stressed, “the problem is not the time per se as all economic operators would have to comply with the minimum time limits (although it would have been preferable to just block the use of accelerated or time-reduced procedures) but the fact one of the economic operators had access to information before everyone else and influenced the design of the tender documents“. Hence, the time limit will have to be complemented with substantive assessments to ensure that additional delay (if any) has actually neutralised the first “knower” advantage.

Regulation 47(2) PCR2015 establishes specific rules for time limits concerned with procedures that require site visits or on-the-spot inspections, in which case  the time limits for the receipt of tenders shall be fixed so that all economic operators concerned may be aware of all the information needed to produce tenders. In any case, and implicitly acknowledging that the ‘regular’ procedure regulated in the PCR2015 and Directive 2014/24/EU does not include such visits or inspections, Regulation 47(2) PCR2015 mandates that  the time limits set in these cases shall be longer than the minimum time limits set out in Regulations 27 to 31 PCR2015, but the exact duration is not defined, thus leaving us to recourse to the general principles to do so, particularly proportionality. Paragraph 4 does not seem to be applicable here and is relevant only for paragraph 3.

Paragraphs 47(3) to (6) PCR2015 establish rules concerning extension of time limits. The first determines two cases where contracting authorities must extend the time limits for the receipt of tenders so that all economic operators concerned may be aware of all the information needed. Regulation 47(3) PCR2015 provides for the extension of time limits where: (a) for whatever reason, additional information requested by an economic operator in good time, is however not supplied at the latest 6 days before the time limit fixed for the receipt of tenders or 4 days in case of accelerated procedures, as per Regulation 47(5); and (b) significant changes are made to the procurement documents. 

Regarding (a), as long as the information is not insignificant (more about that below), then the deadline needs to be extended in accordance with the proportionality test of paragraph 4. However, the proportionality test of paragraph 4 only checks the importance of the missing information. Crucially it omits the issue of the contract complexity. It is bad enough that a variation of the principle of proportionality is mentioned here (it was not needed) and it is worse that it can mislead officials by thinking they have complied with the principle of proportionality even if they did not take into account the contract complexity to calculate the extension. Regarding (b), Regulation 47 provides no guidance of what may constitute a significant change to the procurement documents and it seems that this can easily become a bone of contention. Perhaps the solution is an analogy to the material changes to the contract that trigger re-tendering under Regulation 72 [CROSSREF]?

Regulation 47(4) PCR2015 requires that the length of the extension be proportionate to the importance of the information or change, and Regulation 47(6) PCR2015 clarifies that contracting authorities are not required to extend the time limits where additional information has either not been requested in good time or its importance with a view to preparing responsive tenders is insignificant. Another potential troublemaker is the definition of “insignificance” for the purposes of paragraph 6. It is the contracting authority who needs to make this assessment but should do so in view of its importance to prepare the tenders. We suspect contracting authorities may feel tempted to define the information requested as insignificant often, as it allows them to keep to the original timeframe.

Beyond these issues, it is important to stress again that most of these decisions remain within the contracting authority’s discretion, so that it always has the possibility to extend time limits for good reason, provided it does so in a way that is non-discriminatory and does not affect competition. For instance, in case some tenderer has already submitted a tender, an ulterior extension should imply the possibility for that tenderer to submit a revised tender in order to allow it to take advantage of the extension. Consequently, contracting authorities always have the possibility to make value judgements regarding the actual need or an extension of the initial time limits. It can be argued that, in case of doubt (or explicit and reasonable request from tenderers), they should always adopt the default position of granting extensions (if nothing else, to avoid litigation risks, but more importantly, to avoid actually disadvantaging certain competitors).

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

47.—(1) When fixing the time limits for the receipt of tenders and requests to participate, contracting authorities shall take account of the complexity of the contract and the time required for drawing up tenders, without prejudice to the minimum time limits set out in regulations 27 to 31.

(2) Where tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the procurement documents, the time limits for the receipt of tenders, which shall be longer than the minimum time limits set out in regulations 27 to 31, shall be fixed so that all economic operators concerned may be aware of all the information needed to produce tenders.

(3) Contracting authorities shall extend the time limits for the receipt of tenders so that all economic operators concerned may be aware of all the information needed to produce tenders in the following cases:—

(a) where, for whatever reason, additional information, although requested by the economic operator in good time, is not supplied at the latest 6 days before the time limit fixed for the receipt of tenders;

(b) where significant changes are made to the procurement documents.

(4) The length of the extension shall be proportionate to the importance of the information or change.

(5) In the case of an accelerated procedure, the period mentioned in paragraph (3)(a) shall be 4 days.

(6) Where additional information has either not been requested in good time or its importance with a view to preparing responsive tenders is insignificant, contracting authorities are not required to extend the time limits.