Regulation 54 – Invitations to candidates
Regulation 54 PCR2015 establishes requirements for the invitations to candidates that need to be sent in two-stage procurement procedures, in line with the rules of Article 54 and Annex IX of Directive 2014/24/EU. These invitations are generally extended after the selection stage is undertaken, and only to the economic operators the contracting authority has decided to invite to take part in the next stage of the procedure. The main objective of this provision is to ensure that equal treatment is respected (Regulation 18(1) PCR2015), particularly in order to avoid any time advantages derived from non-simultaneous communication with interested candidates.
To that effect, Regulation 54(1) and (2) PCR2015 impose the obligation for the contracting authority to invite simultaneously and in writing the candidates selected at the end of the first phase of restricted procedures, competitive dialogue procedures, innovation partnerships and competitive procedures with negotiation to submit their tender; or the economic operators which have expressed their interest after a prior information notice (PIN) used by a sub-central contracting authority as a call for competition in accordance with Regulation 26(9) PCR2015 to confirm their continuing interest. This is only valid for sub-central contracting authorities and applies at the start of the procedure, before any selection is undertaken. Under this paragraph 2, sub-central contracting authorities must invite any economic operators to take part in the selection stage. Furthermore, after the selection stage, sub-central authorities will have to apply the rules of paragraph 1 and 6 to invite the selected economic operators for the subsequent stage.
Invitations under paragraph 1 or 2 need to comply with a number of formal requirements set in paragraphs 3 and 4. These are related with information that is necessary to comply with the principle of transparency and guarantee that economic operators have access to all the necessary information to take part in the procurement procedure.
Regulation 54(3) PCR2015 sets the specific content of the invitations to candidates, which must as a minimum (a) include a reference to the electronic address at which the procurement documents have been made directly available by electronic means, and (b) be accompanied by the procurement documents, where those documents have not been the subject of unrestricted and full direct access, free of charge, for the reasons referred to in Regulation 53(3) or (4) PCR2015 [CROSSREF] and have not already been made otherwise available. The remainder of Regulation 54 PCR2015 consolidates the requirements of Annex IX of Directive 2014/24/EU.
The rule on disclosure of procurement documents pegged to the invitation to candidates (Regulation 54(3)) is a functional equivalent to the electronic availability of procurement documents under Regulation 53 PCR2015 and, in that regard, supports the possibility of having published the PIN or initial contract notice without all documents being made electronically available by means of the internet, as Regulation 54(4) PCR2015 clearly allows for staggered disclosure of documentation.
It does require the contracting authority to have previously raised issues of confidentiality or technical incompatibility or inadequacy, but a functional interpretation should not be limited to those because the rule is, in our view, simply aimed at avoiding charging the invited tenderers with the obligation to request them as per Regulation 53(6) PCR2015, hence reducing the number of communications in the process for the sake of procedural economy and speediness.
Therefore, in cases where the contracting authority had not disclosed documents earlier for reasons other than strict confidentiality (which would otherwise undesirably work as a catch all), such as technical impossibility of disclosing documents still being finalised or requests for clarifications submitted by interested tenderers, those additional documents must also be made available at this stage together with the invitation to tenderers.
In the case of the invitations under paragraph 1 (the bulk of all invitations) paragraph 4 states that the invitation must include the relative weightings of award criteria as well, or their descending order of importance in case the contracting authority has not done so already, as was possible under Regulation 16 of the Public Contracts Regulations 2006. It would have been preferable to get contracting authorities to disclose the weightings at this stage and it seems difficult to understand how simply indicating the descending order before tenders are submitted can be seen as compliant with the principle of transparency.
For competitive dialogue and innovation partnership the rules are slightly different, but only regarding the information about the deadline for tender submission. In these procedures the information will have to be provided not before the dialogue/prototype stages but just before any “tenders” are submitted, later in the procedure. All other requirements set forth by paragraph 4 are to be complied with.
For invitations under paragraph 2 (ie, PIN notices by sub-central authorities replacing the contract notice) the requirements are more demanding and the invitation to tender includes pretty much all the information expected to be on a contract notice in addition to the information of paragraphs 3 and 4. Overall, a sub-central contracting authority will not reduce its overall workload in case it decides to use a PIN notice instead of a full contract notice.
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
54.—(1) In restricted procedures, competitive dialogue procedures, innovation partnerships and competitive procedures with negotiation, contracting authorities shall simultaneously and in writing invite the selected candidates to submit their tenders or, in the case of a competitive dialogue, to take part in the dialogue.
(2) Where a prior information notice is used as a call for competition in accordance with regulation 26(9), contracting authorities shall simultaneously and in writing invite the economic operators which have expressed their interest to confirm their continuing interest.
(3) The invitations required by paragraphs (1) and (2) shall—
(a) include a reference to the electronic address at which the procurement documents have been made directly available by electronic means, and
(b) be accompanied by the procurement documents, where those documents have not been the subject of unrestricted and full direct access, free of charge, for the reasons referred to in regulation 53(3) or (4) and have not already been made otherwise available.
(4) The invitations required by paragraph (1) shall also contain at least the following information:—
(a) a reference to the call for competition published;
(b) the deadline for the receipt of the tenders, the address to which the tenders must be sent and the language or languages in which the tenders must be drawn up;
(c) in the case of competitive dialogue, the date and the address set for the start of consultation and the language or languages to be used;
(d) a reference to any documents to be submitted, either in support of verifiable declarations by the tenderer in accordance with regulations 59 and 60 and, where appropriate, 62 or to supplement the information referred to in those regulations, and under the conditions laid down in regulations 59, 60 and 62;
(e) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance for such criteria, where they are not given in the contract notice, in the invitation to confirm interest, in the technical specifications or the descriptive document.
(5) But in the case of contracts awarded through a competitive dialogue or an innovation partnership, the information referred to in paragraph (4)(b) shall not appear in the invitation to participate in the dialogue or to negotiate but it shall appear in the invitation to submit a tender.
(6) The invitations required by paragraph (2) shall also contain at least the following information:—
(a) nature and quantity, including all options concerning complementary contracts and, where possible, the estimated time available for exercising these options for renewable contracts, the nature and quantity and, where possible, the estimated publication dates of future notices of competition for works, supplies or services to be put out to tender;
(b) type of procedure, namely restricted procedure or competitive procedure with negotiation;
(c) where applicable, the date on which the delivery of supplies or the execution of works or services is to commence or terminate;
(d) where electronic access cannot be offered, the address and closing date for the submission of requests for procurement documents and the language or languages in which they are to be drawn up;
(e) the address of the contracting authority which is to award the contract;
(f) economic and technical conditions, financial guarantees and information required from economic operators;
(g) the form of the contract which is the subject of the invitation to tender, namely purchase, lease, hire or hire-purchase, or any combination of these; and
(h) the contract award criteria and their weighting or, where appropriate, the order of importance of such criteria, where this information is not given in the prior information notice or the technical specifications or in the invitation to tender or to negotiate.