Seeing Through a Transparent Procurement

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The Crown Commercial Service (CCS) has recently published a Procurement Policy Note (PPN) reminding all contracting authorities of their obligations under the Public Contracts Regulations 2015 (PCR) to publish on Contracts Finder.

Transparency requirements are a key element in the European rules which the PCR implement. At European level, procuring contracts for goods, works or services above certain threshold values requires a contract notice to be published, as well as a contract award notice in the Official Journal of the European Union – commonly referred to as an “OJEU”.

In addition to OJEU to increase participation of SMEs in the public contract sector, the UK government when adopting the PCR went further by adopting the recommendations in the Lord Young Reforms. With regard to transparency this means that contracts falling below the OJEU threshold that are advertised must also be published in Contracts Finder subject to some exemptions.

Subject to some exemptions, the general requirements are that any contract opportunity above a minimum value that is advertised must be published on Contracts Finder within 24 hours. This means that a contract notice published on OJEU must also be published on Contracts Finder as the two are not currently linked. The information for Contracts Finder is not as detailed as for OJEU and some of the OJEU information can be used when preparing the contract notice for Contracts Finder. Further, if a contract opportunity is advertised through the contracting authority’s website or a procurement portal but does not meet the relevant threshold to be published on OJEU, if it is above the minimum value as set out in the PCR for Contracts Finder it must be published on Contracts Finder.

In addition, contract award notices must also be published in the same way so if a contract award is being published on OJEU, it must also be published on Contracts Finder subject to relevant exemptions. Similarly, once a contract notice is published on Contracts Finder, the contract award notice must also be published on Contracts Finder.

Failure to comply with OJEU may result in the contract being set aside if a contracting authority is challenged. In relation to Contracts Finder the situation is not as clear, although a contracting authority could be vulnerable to judicial review. Ensuring compliance in relation to advertising is an important aspect of the PCR as failure to do so may result in litigation and the procurement process being set off course.

However the Brexit negotiations turn out, there is most likely to be a procurement regime in the UK in years to come and until anything changes all aspects of the PCR should be observed as before. The Contracts Finder element is largely a UK creation so contracting authorities should plan to keep complying with these extra requirements too.

Forbes Solicitors regularly advice a range of contracting authorities on the PCR and Contracts Finder. If you have any queries relating to advertising or any other issue relating to procurement, please contact Daniel Milnes.

 

Nat Avdiu

About Nat Avdiu

Nat Avdiu is a Paralegal in the Contracts and Projects team at Forbes Solicitors. Nat provides updates for clients on a range of issues including: governance, data protection and freedom of information, procurement and charity law.
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