Regulation 48 – Prior information notices

Commentary

Regulation 48 PCR2015 transposes Article 48 of Directive 2014/24/EU on the subject of publication of prior information notices (PIN). PIN notices allow contracting authorities to inform the market in advance of what they intend to buy in the future. Contracting authorities can resort to PIN notices to make known their intentions of planned procurements, and PIN notices can cover a maximum period of 12 months from the date on which the notice is transmitted for publication, except in the case of public contracts for social and other specific services, where the PIN may cover a period which is longer than 12 months. 

According to paragraph 3, contracting authorities are given two options in what concerns the use of PIN notices: they can either send the PIN notice with full information for publication in the Official Journal or, instead, publish it locally (ie, nationally) on a buyer’s profile. The first one needs to be done in accordance with Regulation 51 [CROSSREF] and the second with Regulation 52 [CROSSREF]. In either case it seems that it is possible to achieve the timescale reductions in open and restricted procedures.

Having said that, in case the PIN is published “nationally” then at least some information will always have to be published on the Official Journal (ie the information that there is a PIN notice in the buyer profile…), thus begetting the question of why allowing PIN notices to published nationally in the first place, particularly as they can be used to reduce timescales, thus making life more difficult for foreign suppliers.

Sub-central contracting authorities can also use the PIN notice in lieu of a contract notice as long as it complies with the requirements set in paragraphs 5 and 6. In general we are talking about providing the information required in the contract notice. Two limitations apply in this situation however. First, it is only valid for procedures launched within 35 days and 12 months after the notice is published. Second, the notice must be published in full in the Official Journal, so contracting authorities are not authorised to publish it in full on a buyer’s profile instead.

In yet another strange structure reversal the general rule covering the duration of PIN notices comes in paragraph 7 (12 months validity), after the special rule for sub-central contracting authorities mentioned above. Paragraph 8 includes as well a specific rule for social contracts, where the PIN may cover a period longer than 12 months.

PIN notices can have three main functions. First, contracting authorities can use them to check the market and see what is available before launching a tender (generally in relation with Regulation 40). Second, they can be used to reduce the timescales of a subsequent public procurement procedure in case certain requirements are met. Third, sub-central contracting authorities can use them effectively as contract notices. PIN notices are not new and could be used more often in public procurement. As they imply a lot of thinking ahead and horizon scanning, this can provide indirect evidence that those activities are well ingrained into public procurement practice. There are, however, significant competition implications arising from a widespread use of PIN notices, with the same considerations being valid for the publication of contract pipeline information.

In a universe full of PIN notices, cartels would have a lot of time to slice and dice their own markets. Therefore, the effects of their use on market transparency need to be assessed carefully (for discussion, please see A Sanchez-Graells, “The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives” (November 2013) University of Leicester School of Law Research Paper No. 13-11). Pre-announcing forthcoming contract opportunities every 12 months facilitates the split of contracts between them, and even allows them to plan complex allocation strategies that imitate randomness, hence reducing the likelihood of detection. Consequently, contracting authorities would be well advised to use PIN notices carefully and not to obsess with them with the simple object of reducing the minimum time limits they need to respect for specific contracts.

Using PIN notices with shorter durations, or reserving the flexibility to procure in terms and periodicity different than those announced in the PIN could also be useful tools. In the end, publishing a PIN does not bind the contracting authority to actually carry out the procurement, and the possibility to tender contracts no included in PIN notices is always available. Hence, contracting authorities should avoid situations of absolute foreseeability of their procurement projects for the next 12 (or even 6) months, and only use them where alerting the market of a particularly relevant opportunity or a significantly complex project is coming up, so that they can express interest and make sure that they have the resources needed to tender in due course.

 

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

48.—(1) Contracting authorities may make known their intentions of planned procurements through the publication of a prior information notice.

(2) Such notices shall contain the information set out in section I of part B of Annex V to the Public Contracts Directive.

(3) A contracting authority wishing to publish a prior information notice shall—

(a) send it for publication in accordance with regulation 51; or

(b) publish it on the contracting authority’s buyer profile in accordance with regulation 52.

(4) Where the prior information notice is published by the contracting authority on its buyer profile, the contracting authority shall send for publication, in accordance with regulation 51, a notice containing the information set out in part A of Annex V to the Public Contracts Directive.

(5) Where sub-central contracting authorities use a prior information notice as a call for competition in accordance with regulation 26(9), the notice shall fulfil all of the following conditions:—

(a) it refers specifically to the supplies, works or services that will be the subject-matter of the contract to be awarded;

(b) it indicates that the contract will be awarded by restricted procedure or competitive procedure with negotiation without further publication of a call for competition and invites interested economic operators to express their interest;

(c) it contains, in addition to the information set out in section 1 of part B of Annex V to the Public Contracts Directive, the information set out in section 2 of that part;

(d) it has been sent for publication between 35 days and 12 months prior to the date on which an invitation is sent for the purposes of regulation 54(1) or (2).

(6) Where paragraph (5) applies, paragraph (3)(b) shall not apply to the notice, but additional publication at national level under regulation 52, if any, may be made on a buyer profile.

(7) The period covered by the prior information notice shall be a maximum of 12 months from the date on which the notice is transmitted for publication.

(8) In the case of public contracts for social and other specific services, the prior information notice referred to in regulation 75(1)(b) may cover a period which is longer than 12 months.