Regulation 84 – Reporting and documentation requirements

Commentary

Regulation 84 PCR2015 imposes a number of obligations related to reporting and documentation requirements that are to be followed by contracting authorities awarding public contracts (and framework agreements/Dynamic Purchasing Systems…) covered by Part 2 of the Public Contracts Regulations 2015. This is an area where Directive 2014/24/EU ended up losing much of the bite initially included in the 2011 Commission’s Proposal, which would have set a requirement for the creation of a national oversight body and triggered significant interest from practitioners. For example, see the UK’s Procurement Lawyers’ Association working group on Art 84 of the proposal and also the broader discussion by Pedro Cerqueira Gomes, “A lost proposal in the 2014 Public Procurement Package: Is there any life for the proposed public procurement oversight bodies?”, in GS Olykke & A Sanchez-Graells (eds), Reformation or Deformation of the EU Public Procurement Rules (Edward Elgar, 2016) 170-192.

Indeed, the oversight and monitoring obligations that Member States need to discharge were limited to the requirements of Article 83 Directive 2014/24/EU whereby, in order to effectively ensure correct and efficient implementation, they need to guarantee that the tasks set out in that article are performed by one or more authorities, bodies or structures. Those tasks include: i) recurrent monitoring obligations, ii) public disclosure of the results of such monitoring (Article 83(2) of Directive 2014/24/EU, and iii) period reporting to the European Commission by 18 April 2017 and every three years thereafter (Article 83(3) of Directive 2014/24/EU. The Commission will then use such country reports to update its implementation reports (see here).

Moreover, Member States shall ensure that information and guidance on the interpretation and application of EU public procurement law is available free of charge to assist contracting authorities and economic operators, in particular SMEs, in correctly applying the Union public procurement rules; and that support is available to contracting authorities with regard to planning and carrying out procurement procedures (Article 83(4) of Directive 2014/24/EU. Member States shall also designate a point of reference for cooperation with the Commission as regards the application of public procurement legislation (Article 83(5) of Directive 2014/24/EU. In England, this is fundamentally done by the Crown Commercial Service (CCS).

In order to enable the Member State to discharge such obligations, Directive 2014/24/EU imposes documentary obligations that trickle down to contracting authorities and that the PCR2015 replicates. Additionally to the obligations on retention of contractual documents of Regulation 83 PCR2015, Regulation 84 creates  reporting obligations for contracting authorities.

Under Regulation 84(1) PCR2015, contracting authorities need to draw up a written individual report for every contract or framework agreement covered by Part 2 PCR2015, and every time a dynamic purchasing system is established. For a practical guide to the content of such report’s, see Bevan Brittan’s byte size procurement update 19 here. Such a report is however not required in respect of contracts based on framework agreements where these are concluded in accordance with Regulation 33(7) or (8)(a) PCR2015 as per Regulation 84(2).

The report needs to have specific contents depending on the type of contract awarded (Regulation 84(1)) but, to minimize the compliance burden, the contracting authority may instead of preparing a full report for each contract may refer to the contract award notice that they have produced instead in accordance with Regulations 50 or 75 PCR2015 (Regulation 84(3)). These reports need to be made available to the European Commission upon request (Regulation 84(4)) as well as to the to the Cabinet Office or to such other body as the Cabinet Office may direct in connection with any functions which that body exercises for the purposes of Article 83 of Directive 2014/24/EU (Regulation 84(5) and see above).

Moreover, Regulation 84(6) PCR2015 imposes additional reporting obligations to the Cabinet Office, for the purpose of enabling the Cabinet Office to provide the Commission with information. Hence, beyond the contents of the report as per Regulation 84(1) PCR2015, contracting authorities need to be able to provide “such other information as the Cabinet Office may from time to time request” (Regulation 84(6)), which potentially creates a heavier reporting burden than that strictly derived from the rules in Directive 2014/24/EU. Currently, this already happens to ministerial departments so in reality this provision is extending the obligation to the wider public sector (and it will be interesting to see if/how it will be applied in Wales and Northern Ireland…).

In that regard, though, it is important to stress that Regulation 84(7) to (9) PCR2015 transpose the general documentary requirements foreseen in Article 84(2) Dir 2014/24/EU, whereby contracting authorities shall document the progress of all procurement procedures, whether or not those are conducted by electronic means. To that end, they shall ensure that they keep sufficient documentation to justify decisions taken in all stages of the procurement procedure, such as documentation on communications with economic operators and internal deliberations, preparation of the procurement documents, dialogue or negotiation if any, selection and award of the contract. The documentation shall be kept for a period of at least three years from the date of award of the contract, which is not as extensive as we would like it to be, but still in line with the Directive requirements. Consequently, diligent contracting authorities should not have difficulties in providing detailed reports on any matters arising from a well-documented procurement procedure.

It may be worth stressing that contracting authorities will need to protect confidential information as per Regulation 21 PCR2015, which will probably solely require them to make sure that the Cabinet Office, any other body as the Cabinet Office may direct in connection with any functions which that body exercises for the purposes of Article 83 of Directive 2014/24/EU and the European Commission have procedures in place to guarantee the confidentiality of the sensitive parts of the reports.

This provision is quite important and beneficial in the long run. It will force proper record keeping and project management in public procurement and perhaps the days of poor attention to detail in procurement are behind us. Under this regime, situations like the Geodesign Barriers Limited v The Environment Agency case are difficult to occur.

Contracting authorities will complain mightily about these compliance requirements but these are overdue and the burden can be reduced if proper e-procurement tools are used. There is no reason why most of the reporting cannot be done automagically via software but that will imply a change of practice in contracting authorities in England, Wales and Northern Ireland. Good IT systems will be crucial for the efficacy of this provision and for keeping transaction costs low…let’s not forget that the Cabinet Office (paragraph 5) and the Commission (paragraph 4) may ask for the reports about any contract to any contracting authority at any time.

Last modified: December 5, 2016 by Pedro Telles

Individual reports

84.—(1) For every contract or framework agreement covered by this Part, and every time a dynamic purchasing system is established, contracting authorities shall draw up a written report which shall include at least the following:—

(a)the name and address of the contracting authority, the subject-matter and value of the contract, framework agreement or dynamic purchasing system;

(b)where applicable, the results of the qualitative selection and reduction of numbers pursuant to regulations 65 and 66, namely:—

(i)the names of the selected candidates or tenderers and the reasons for their selection;

(ii)the names of the rejected candidates or tenderers and the reasons for their rejection;

(c)the reasons for the rejection of tenders found to be abnormally low;

(d)the name of the successful tenderer and the reasons why its tender was selected and, where known—

(i)the share (if any) of the contract or framework agreement which the successful tenderer intends to subcontract to third parties, and

(ii)the names of the main contractor’s subcontractors (if any);

(e)for competitive procedures with negotiation and competitive dialogues, the circumstances as laid down in regulation 26 which justify the use of those procedures;

(f)for negotiated procedures without prior publication, the circumstances referred to in regulation 32 which justify the use of this procedure;

(g)where applicable, the reasons why the contracting authority has decided not to award a contract or framework agreement or to establish a dynamic purchasing system;

(h)where applicable, the reasons why means of communication other than electronic means have been used for the submission of tenders;

(i)where applicable, conflicts of interests detected and subsequent measures taken.

(2) But such a report is not required in respect of contracts based on framework agreements where these are concluded in accordance with regulation 33(7) or (8)(a).

(3) To the extent that the contract award notice drawn up in accordance with regulation 50 or 75(3) contains the information required in this paragraph, contracting authorities may refer to that notice.

(4) Where the Commission so requests, a contracting authority shall communicate the report, or its main elements, to the Commission.

(5) Where the Cabinet Office so requests, a contracting authority shall communicate the report, or its main elements, to the Cabinet Office or to such other body as the Cabinet Office may direct in connection with any functions which that body exercises for the purposes of Article 83 of the Public Contracts Directive.

Reporting other information required by the Cabinet Office

(6) Contracting authorities shall send to the Cabinet Office a report containing such other information as the Cabinet Office may from time to time request in respect of procurements—

(a)within the scope of this Part, or

(b)which would have been within the scope of this Part if their value had exceeded the relevant threshold mentioned in regulation 5,

for the purpose of enabling the Cabinet Office to provide the Commission with information.

Documentation of progress and decisions

(7) Contracting authorities shall document the progress of all procurement procedures, whether or not they are conducted by electronic means.

(8) To that end, contracting authorities shall ensure that they keep sufficient documentation to justify decisions taken in all stages of the procurement procedure, such as documentation on —

(a)communications with economic operators and internal deliberations,

(b)preparation of the procurement documents,

(c)dialogue or negotiation if any,

(d)selection and award of the contract.

(9) The documentation shall be kept for a period of at least 3 years from the date of award of the contract.