For the majority of above EU Threshold tenders, contracting authorities are required to publish a contract notice in the OJEU and a contract notice on Contracts Finder, stating its intention to seek offers in respect of the requirement that has been identified.
Minimum timescales by which interested parties have to either express an interest in participating in the tender, or make a tender submission will be stated in the contract notice. A summary of the minimum timescales for each procedure may be found here.
Sub central contracting authorities (e.g. schools, academies, further education colleges) will also be able to use the Prior Information Notice (PIN) for advertising purposes in certain defined circumstances.
The contracting authority cannot publicise the contract on Contracts Finder before it has been published on OJEU or at least 48 hours have elapsed from the receipt of the confirmation of the notice from OJEU. The contract notice on Contracts Finder must be published within 24 hours of when it is entitled to be published as detailed above. Such publications must not contain any more information than was contained in the OJEU contract notice.
More information on what is to be included in an OJEU contract notice can be found in A Guide to Completing OJEU Contract Notices. More information on what is to be included in a Contracts Finder contract notice can be found in the Crown Commercial Services Guidance on the new transparency requirements for publishing on Contracts Finder.
Note: When publishing a contract notice in the OJEU and quoting a URL where the economic operator will obtain the tender documentation, this link must go directly to the additional information that specifically relates to the contract opportunity and not be used as a means of advertising an intermediary's services and/or soliciting registration with the intermediary. OGC has published further information on providers of this type of service, called Use of Intermediaries.
Below threshold procurements advertising requirements
It is well established that the procurement of contracts which fall below those financial values which trigger the application of The Public Contracts Regulations must still be governed by fundamental principles of transparency and equal treatment. The European Commission has published non-binding guidance which seeks to clarify the position on the degree of advertising required for contracts outside the scope of the Directive and the Regulations.
The first step is to decide whether a particular contract is of interest to providers in other Members States. In order to determine this, the contracting authority should consider the subject-matter of the contract; its estimated value; the particular market involved; and the geographical location where the contract is to be carried out.
If, having carried out this assessment, the contracting authority determines that the contract is likely to be of interest to parties in other Member States, it should publish a “sufficiently accessible advertisement” prior to awarding the contract. The Public Contracts Regulations 2015 require that if a contracting authority chooses to advertise a contract opportunity, the contracting authority shall also publish information about the opportunity on Contracts Finder within 24 hours of the time it first advertise the contract award opportunity in any other way. For more detail on the information to be published on Contracts Finder see Crown Commercial Service Guidance on the new transparency requirements for publishing on Contracts Finder.
Some practical suggestions on procuring below the threshold:
- For each contract opportunity, assess whether the contract could be of interest to providers in other Member States. Consider subject-matter, contract value, the specifics of the market concerned, and the geographical location where the contract is to be carried out.
- If the value of the contract is modest, it’s unlikely to be of interest to providers in other Member States, with the result that advertising is not required.
- Remember that it is your responsibility as a contracting authority to decide whether an intended contract has cross border interest. Consequently don’t adopt a blanket approach to all contract opportunities but make the decision on whether to advertise on a case by case basis.
- Be aware that the European Commission has been active in this area, instituting proceedings against Member States for failure to advertise contracts an example can be found in the case of Mansfield District Council v Secretary of State for Communities and Local Government. Be sure that you record in writing whether you believe there is a realistic prospect of any cross border interest in below threshold contracts.