Regulation 83 – Retention of contract copies

Commentary

Regulation 83 PCR2015 marks the beginning of Chapter 4, the last chapter within Part 2 where most of the substantive procurement rules can be found. Therefore, the rules contained within this Regulation apply to all contracts/procedures mentioned so far. Regulation 83 PCR2015 establishes rules on retention of contract copies aimed at complying with the documentary requirements of Article 83(6) of Directive 2014/24/EU. According to these rules, contracting authorities shall, at least for the duration of the contract, keep copies of all concluded contracts with a value equal to or greater than 1,000,000 EUR in the case of public supply contracts or public service contracts; and 10,000,000 EUR in the case of public works contracts (Regulation 83(1)_.

It is important to point out that the counter-value of those thresholds should be determined according to the Communication from the Commission on corresponding values of the thresholds of Directives 2004/17/EC, 2004/18/EC and 2009/81/EC of the European Parliament and of the Council [2013] OJ C 366/1, which sets them at £833,400 and £8,334,000 respectively.

In any case, the rule in Regulation 83(1) PCR2015 could have clarified that the relevant value for these purposes is to be determined, for example, at the moment of signature. However, given that the contract can be modified and that the value at signature rule is by no means the only option, it may be a good idea for contracting authorities to retain copies of all concluded contracts in any case.

Additionally, it is worth stressing that it appears that in the day a contract ends all records can be destroyed, at least in accordance with the PCR2015. It seems odd in this day and age to not impose a more ambitious “record keeping” objective. Why is it possible for a 9,999,999 EUR works contract to be done without proper records being kept? We suspect that internal audit obligations in most contracting authorities will probably ensure that lower value contracts are kept. Nonetheless, we are not sure that contracts below the aforementioned values will lead to the application of paragraph 2 on access to those contracts, although they would still be subject to Freedom of Information rules.

Speaking of paragraph 2, it determines that contracting authorities shall grant access to those contracts, but access to specific documents or items of information may be denied to the extent and on the conditions provided for in the applicable EU or national rules on access to documents and data protection. This opens a can of worms regarding the obligations to disclose concluded contracts under freedom of information requests or any other transparency rules

The authors of have a disagreement on whether disclosing concluded contracts in full is a bad or a good idea due to the transparency it creates (see here, here and here for discussion). Hence, we would promote a careful assessment of the effects of disclosing this information and would focus on the obligation of contracting authorities to comply by analogy with their duty to protect confidential and competition sensitive information under Regulations 21 and 86 PCR2015 (CROSSREFS).

Last modified: December 5, 2016 by Pedro Telles

83.—(1) Contracting authorities shall, at least for the duration of the contract, keep copies of all concluded contracts with a value equal to or greater than—

(a)1,000,000 EUR in the case of public supply contracts or public service contracts;

(b)10,000,000 EUR in the case of public works contracts.

(2) Contracting authorities shall grant access to those contracts, but access to specific documents or items of information may be denied to the extent and on the conditions provided for in the applicable EU or national rules on access to documents and data protection.