Brief Guide to Public Sector EU Procurement Legislation. Services for professional procurement. Be better informed, make better decisions.

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1 Services for professional procurement. Be better informed, make better decisions. Brief Guide to Public Sector EU Procurement Legislation

2 Public procurement in the European Union (EU) has been estimated at around 25% of the Union s GDP. One of the founding principles of the EU is the creation of a single market throughout the EU with no barriers to trade. The opening up of public procurement has been facilitated by a succession of European Directives, to uphold the requirements of the Treaty (Treaty of the Functioning of the European Union TFEU), in particular to ensure non-discrimination on grounds of nationality. The current public sector Directive is 2014/24/EU and there is a separate Directive covering works and services concession contracts which is 2014/23/EU. Both of these Directives were published in the Official Journal of the European Union (OJEU) on 28th March The public sector Directive is implemented in domestic law through regulations in the form of a statutory instrument SI 2015/102, the Public Contracts Regulations (Note there is a parallel implementation for Scotland in the form of a Scottish Statutory Instrument (SSI)). Compliance with the Regulations will also meet the EU s international obligations, for example under the World Trade Organisation Government Procurement Agreement (GPA). These agreements further expand the relevant markets to include several other states, such as the USA, Hong Kong and Japan. The 2015 Regulations (SI 2015/102) also contain national provisions which apply to contract procedures below the EU thresholds conducted by contracting authorities in England (and also to contracting authorities in Wales and Northern Ireland, where their functions are not devolved). These national requirements are covered later in the guide. The rules of the Procurement Directives are enforceable through remedies provided by the public sector Remedies Directive (89/665/ EEC as amended by Directive 2007/66/EC). The remedies provisions are implemented in the Public Contracts Regulations alongside the provisions of the Procurement Directive (there are expected to be separate regulations for concessions). The available remedies include the suspension of procedures, the setting aside of decisions, the award of damages and ineffectiveness of concluded contracts. Value for money is best served by a common sense approach to legislation. A knowledge of the framework of the law allows authorities to obtain the benefits, but with the minimum cost, delay and disruption to their operations. This guide provides a brief outline of the legislation. What is Public Procurement legislation? European public procurement legislation sets out the procedures and practices to which central and local government, along with all other public bodies (e.g. police, universities, etc.) must adhere when conducting procurement above the relevant threshold. This legal framework is designed to ensure that contracts are awarded transparently, without discrimination on grounds of nationality, as well as ensuring that all potential bidders are treated equally. 2

3 The legal framework includes the obligations of the Treaty (see flowchart of Treaty principles at the end of the guide), the directives and case law of the EU and domestic courts. Annex 1 gives further details of the sources of legislation and guidance. Which procurements are covered by the rules? Not all procurements will be covered by the rules. There are a number of circumstances where the regulations explicitly exclude certain types of contracts. These exclusions include secret contracts where secrecy is in the national interest, contracts concerning real estate and contracts for research and development services, subject to certain qualifications. Where a contract does not fall under any of the exclusions provided for in the regulations, it is then necessary to establish which category it falls under (works, services or supplies) in order to determine the relevant threshold. Where the contract is for services, it is further necessary to determine if it is for social and other specific services listed in Schedule 3 to the Regulations, which are subject to a higher threshold. Where a contract is in principle covered by the rules, it is necessary to estimate the value of the contract, in order to determine if its value exceeds the relevant financial threshold (see table on previous page), and thus whether it actually is within the scope of the Directives/Regulations. Unfortunately the process of valuing a contract is not always straightforward, for instance, the legislation requires aggregation of contracts having similar characteristics and those which are for the same type of goods or services over a certain period. In addition to this, the values of all the contracts in relation to a works project have to be aggregated. Finally, the valuation of frameworks must take into account the value of all potential call offs under that framework during its lifetime and it is this value that must be compared with the thresholds. The legislation specifically forbids the splitting up of contracts in order to keep them below threshold. Where the regulations do not explicitly apply to a contract, there may still be an obligation to adhere to the fundamental treaty principles in the award procedure. The courts have upheld this with a particular emphasis on the transparency principle. The treaty principles will generally apply to all contracts where there is potential for a cross border interest (see flowchart on Treaty principles at the end of the guide). Publishing notices in OJEU Once it has been established that a contract is covered by the rules, authorities must publicise their intention to seek offers in relation to the contract by publishing a call for competition notice in the Official Journal of the European Union (OJEU). The principal means of making a call for competition (i.e. advertising the requirement) is via a contract notice, although there are specific notices for concessions, design contests and social and other specific services. A prior information notice (PIN) can also be used as a call for competition by sub-central authorities. There is an exact format that all notices must follow as required by OJEU and notices sent in any other format will not be accepted. Notices have to be transmitted via an approved e-sender. THEMiS contains the official forms in the required format. and has approved e-sender status. There are 22 different notices in total (covering public sector; utilities sector; defence and security and concessions), however, the main public sector notices are summarized below. 3

4 Prior Information Notice (PIN) The PIN has two prime functions. Firstly, as a voluntary means of giving advance notice of estimated requirements for the financial year - for supplies and services or, in the case of works project, the total requirements for the project. Publishing a PIN on this basis can qualify for a reduction in tender return timescales, as detailed in the flowcharts for each procedure at the end of this guide. Secondly, a PIN can simultaneously be a call for competition where the contracting authority is a sub-central body. Contract Notice This notice acts as a call for competition for a specific contract (unless the requirement has already been covered under a PIN as call for competition) and should be published as soon as possible after the intention to tender has been formed. It provides specific details of the contract as well as criteria for applicants to be selected for invitation to tender. Contract Award Notice Within 30 days of the conclusion of a contract, a Contract Award Notice must be sent to OJEU. The award notice contains details of the winning tenderer and details of the award process. A contract award notice must be submitted for all covered contracts. Concessions There are separate concession and concession award notices. A concession award notice has to be dispatched to OJEU within 48 days of contract award. Social and specific services. There is a single public sector notice for social and specific services which performs the function of a PIN, contract notice or contract award notice, depending upon the selection made. Procurement procedures There are 5 different award procedures available under the Directive/Regulations. These are open, restricted, competitive dialogue, competitive procedure with negotiation and innovation partnership. A contracting authority is free to use either the open or restricted procedures. The regulations do not govern the choice between the open and restricted procedures. Under an open procedure, it is open to any interested supplier to submit a bid, whereas under the restricted procedure, the number actually invited to tender may be restricted to a limited number based upon an evaluation of the pre-qualification information submitted by applicants. The competitive dialogue and competitive procedure with negotiation have to be justified and are typically to be used for requirements that are not readily available on the market (i.e. where all readily available solutions need adaptation), whereas the innovation partnership is for the development of an innovative product, service or works not available on the market. The procedures are represented in flowcharts at the end of the guide, giving the key stages and the timescales associated with each stage. Note that the innovation partnership procedure is not provided in flowchart form as the structure of the procedure isn t prescriptive. Suppliers must be excluded from the procedure when the contracting authority has knowledge that they have been convicted of certain serious offences, such as fraud, organised crime, corruption and money laundering - unless overriding requirements in the general interest can be demonstrated. The exclusion grounds are valid for a maximum of five years from the relevant conviction. The contracting authority also has discretion to exclude suppliers on specified grounds such as grave professional misconduct and failure to pay taxes. Suppliers that are bankrupt or insolvent may also be excluded at the contracting authority s discretion. Such exclusion grounds are valid for a maximum of three years from the relevant event. 4

5 Short listing Where suppliers have not been excluded they can be further evaluated for the tender list on the basis of information concerning their economic and financial standing as well as technical capacity and ability. At this stage only suppliers ability to perform the contract satisfactorily is being considered and not whether they will make the best offer. It is a requirement that any minimum capacity levels and rules for selection are disclosed in the contract notice, although in practice this may be in a PQQ, where one is used. Suppliers have the right to be advised of reasons where they have not been selected. If suppliers are not advised of their failure, and the reasons for it (after the selection process), they must be sent a standstill letter, at the standstill stage, giving the information. Assessing Tenders and Choosing a Winner A public contract has to be awarded by a contracting authority based upon the best price/quality ratio (although this can be lowest price/cost). Cost can be assessed on the basis of life-time cost. The contracting authority must use criteria linked to the subject matter of the contract when assessing tenders. The questions should relate to HOW the supplier will perform the contract. This can include quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period and period of completion. Notably, it can also include organisation, qualification and experience of staff assigned to performing the contract, where the quality of the staff assigned can have a significant impact on the level of performance of the contract. Note that this is by not an exhaustive list. The criteria to be used and the assigned weightings must be disclosed. Where it is not objectively possible to weight the criteria, they may be listed in descending order of importance. The criteria and weightings have be disclosed in the procurement documents. As soon as the award decision has been taken, the authority must inform all tenderers of the outcome by sending an award decision notice, often referred to as a standstill or Alcatel letter. All other suppliers that applied to be considered for the contract must also receive the award decision notice, unless they have already been advised of their exclusion from the procedure AND been given the reasons for the exclusion decision, following the pre-qualification stage. The award decision notice must include: 1. Criteria and weightings for the award of the contract (including any sub-criteria used) 2. The reasons for the decision, including the characteristics and relative advantages of the winning tenderer, along with the scores, where relevant, of the winning tenderer and the supplier receiving the notification 3. The name of the winning tenderer 4. Specific statement of the standstill period within which the contract will not be concluded As stated above, if the authority has been diligent and notified any excluded suppliers of their failure at the selection stage, the number of concerned parties requiring a letter is reduced. Standstill Period The day after the award decision notice has been issued the standstill period will begin. This period is designed to ensure that the procedures which have been followed are open to review before the conclusion of a contract. Where the notification has been issued electronically or by fax, this period will end at midnight on the 10th day following the relevant sending date. Otherwise this period is to last 15 days after the relevant sending date (where sent by methods other than fax or ). Note the final day must fall on a working day, and where it does not, the standstill period must be extended accordingly. During the standstill period the contract cannot be concluded and the full range of pre-award remedies is available where an aggrieved supplier chooses to challenge the award decision. These remedies are principally the set-aside of the award procedure and also the award of damages. When a supplier formally challenges an award decision by starting legal proceedings, the contract may not be concluded until the court deals with the case, or unless the contracting authority applies to have the suspension lifted. There are 3 specific derogations from the mandatory requirement for a standstill period: 1. Where there was no need for a contract notice to be published 2. Where there is only one tenderer and no concerned candidates (may be that all other candidates have been notified of exclusion at an earlier stage as discussed above) 3. Where the award of the contract has been made under a valid framework agreement or dynamic purchasing system. 5

6 Contract award notice Once the contract has been concluded the authority must dispatch a contract award notice to OJEU within 30 days. Note that for a concession contract under the Concessions Directive, this is 48 days from award of the contract. Keeping records Authorities must keep records of decisions made at each stage of the procurement process in case of challenge in the courts or for the purpose of reporting to the Commission if requested. The information which should be kept includes decisions relating to the selection of suppliers and choice of tenderers and justification for choice of procedure where a procedure other than open or restricted has been used. When a supplier challenges Over the last six years there has been a steady increase in the number of supplier challenges, with the public sector being most prone to challenge (please refer to Supplier Challenges Report in THEMiS for further info). In light of this, contracting authorities should take careful consideration when making choices about how to carry out their procurement procedures. Compliance with the Regulations is a duty owed by the contracting authority to suppliers. If a supplier is harmed or may suffer harm as a result of a breach, then the regulations provide for a right to take action in the High Court (England, Wales and Northern Ireland) or, Sherriff Court (Court of Session in Scotland). Below-threshold national requirements The Public Contracts Regulations 2015 include specific requirements for contracts below the applicable EU threshold (referred to here as low-value contracts). Principally this requires advertisement of the contract opportunity (and notification of award) on Contracts Finder. The threshold for this requirement is 10,000 for central government authorities and 25,000 for the remaining public sector, including NHS. This requirement doesn t apply to maintained schools and academies. Further, for low-value contracts below the applicable EU supplies/ services threshold (but above the threshold for the application of these provisions), it is not permitted to have a separate prequalification stage (i.e. a PQQ). This means that for low-value works and for low-value social and specific services contracts a PQQ is only allowed above the applicable EU supplies/services threshold. As stated above, these provisions only apply above 10,000 for central government authorities and 25,000 for sub-central contracting authorities. Suppliers also have the option to make complaints to the European Commission who will make the decision whether or not to investigate. They may then bring an action against the Member State as appropriate in the Court of Justice of the EU. As stated above, where a supplier brings a challenge, an automatic suspension of the award of the contract comes into place. The contracting authority has the ability to request an interim order to end this suspension. Where an authority is deemed to have breached the regulations there are pre-award remedies available, principally set-aside and damages. Where the contract has already been entered into, there is the remedy of ineffectiveness (i.e. cancellation) of a concluded contract, where specific grounds have been met. 6

7 Annex 1 Useful references 1. EU Directive 2014/24/EU The Public Contracts Directive All these policy guidance notes are available through the Achilles THEMiS system, as are summaries and transcripts of relevant court cases (including European Court of Justice cases and those in the UK courts). 2014/23/EU The Concessions Directive 89/665/EEC The Remedies Directive (as amended by 2007/66/EC) 2. Regulations SI 2015/102 The Public Contracts Regulations 2015 (for England, Wales and Northern Ireland) The Defence and Security Public Contracts Regulations The WTO Government Procurement Agreement 4. Other Documents Cabinet Office Guidance Notes Commission Guidance Notes Product Nomenclatures and Public Procurement Defining the Term Product Area in Periodic Indicative Notices Competitive dialogue procedure Framework agreements The Commission Interpretative document on the Environment and procurement The Commission Interpretative document on Social considerations and procurement Procurements not fully covered by the directive rules (including low value contracts) 7

8 Treaty Principles and Sources of Legislation Treaty Principles Freedom of Movement of Goods (Art 34) Freedom of Establishment (Art 49) Freedom to Provide Services (Art 56) Derived Principles (Stated in Recital 1 of Directive 2014/24/EC) Equal treatment Non-discrimination Mutual recognition Proportionality Transparency EU Directives Public sector procurement Directive 2014/24/EU Concessions Directive 2014/23/EU Public sector remedies Directive 89/665/EEC* *As amended by Directive 2007/66/EC Regulations For England and Wales and Northern Ireland: SI 2015 No. 102 Fully regulated contracts above threshold Contracts below threshold 8

9 Open Procedure Despatch PIN - not a call for competition - (optional) allowing shortened tender timescale Must be 35 days min and 12 months max at time of despatch of contract notice to permit shortened tender timescale 35 days minimum Less 5 days if electronic receipt of tenders 15 days min for accelerated timescale or where publication of a valid PIN not a call for competition Dispatch contract notice Make procurement documents available on-line from publication date of notice Deadline for receipt of tenders Assess compliance with minimum capacity requirements, evaluate tenders and determine winner Issue standstill letters 10/15 days min Mandatory standstill period Conclude contract 30 days max Dispatch Contract Award Notice 9

10 Despatch PIN - not a call for competition - (optional) allowing shortened tender timescale If a Prior information notice (PIN) has been dispatched for publication at least 35 days and not more than a year before the contract notice was dispatched, the minimum timescale for return of tenders can be reduced from 35 days to 15 days. Dispatch contract notice This is the formal start of the award procedure. The timescale for return of tenders in an open procedure is 35 days, although this can be reduced by 5 days if tenders can be received electronically. The tender return date is given in the contract notice. If a Prior information notice (PIN) has been dispatched for publication at least 35 days and not more than a year before the contract notice was dispatched, the timescale can be reduced to 15 days. Deadline for receipt of tenders The deadline for receipt of tenders has to be a minimum of 35 days from the date of dispatch of the contract notice, although 5 days can be deducted if tenders can be received electronically. Mandatory standstill period A minimum 10 or 15 day standstill period has to be observed. If the standstill letters are sent to all tenderers (and any concerned candidates) by electronic or fax methods, then the minimum standstill period is 10 days; if one or more of the standstill letters are sent by other methods (such as post), then the minimum period is 15 days. Conclude contract Unless the implications of a legal challenge need to be considered, the contract can be concluded once the standstill period has passed. Dispatch Contract Award Notice A contract notice must be sent to the Official Journal within 30 days of the conclusion of the contract. If you have published your contract notice within Themis, there is the facility to copy common data across from the contract notice by clicking the red A button. If a Prior information notice (PIN) has been dispatched for publication at least 35 days and not more than a year before the contract notice was dispatched, the timescale can be reduced to 15 days. The procurement documents have to be made available on-line at the time that the contract notice is published. Assess compliance with minimum capacity requirements, evaluate tenders and determine winner There is no minimum length for the evaluation period set by the legislation. If any minimum levels of requirements apply, these must be in accordance with the rules set out in the legislation regarding the type of information which can be considered. The evaluation of the offer itself has to be in accordance with the disclosed award criteria, i.e. best price/quality ratio (which can be on the basis of lowest price). Issue standstill letters The standstill letter is issued once the winning tender has been decided upon following the evaluation. The standstill letter has to be sent as soon as possible after the award decision has been made and by the most rapid means practicable. It has to contain i) the criteria used to award the contract; ii) the name of the winning bidder; iii) the winning bidder s score; iv) the recipient s own score; v) the reasons for the award decision, including the characteristics and relative advantages of the winning bid and; vi) a precise statement as to the end of the standstill period. 10

11 Restricted Procedure 30 days minimum Accelerated timescale 15 days minimum Dispatch contract notice Make procurement documents available on-line from publication date of notice Deadline for receipt of pre-qualification information Evaluate pre-qualification information against selection criteria and determine shortlist to tender Despatch PIN - not as call for competition - (optional) allowing shortened tender timescale Must be 35 days min and 12 months max at time of despatch of contract notice to permit shortened tender timescale 30 days minimum Less 5 days for electronic submission 10 days minimum for accelerated timescale or where publication of a valid PIN not a call for competition Issue invitation to tender Deadline for receipt of tenders Evaluate tenders and determine winner Issue standstill letters 10/15 days min Mandatory standstill period Conclude contract 30 days max Dispatch Contract Award Notice 11

12 Dispatch contract notice This is the formal start of the award procedure. The minimum timescale for responses to the notice is 30 days. If an accelerated procedure has been duly justified, the minimum timescale becomes 15 days. It is common practice to provide a pre-qualification questionnaire to suppliers for completion, although the regulations and contract notice pro-formas are drafted on the basis that the contract notice will state the pre-qualification information required for submission by the response date in the notice. If the PQQ is immediately available for download from a suitable website and this is referenced in the contract notice, then the return date for the PQQ could be the same as the closing date for responses stated in the notice. Deadline for receipt of pre-qualification information The minimum timescale for responses to the notice is 30 days, or 15 days where an accelerated procedure is duly justified. It is common practice to provide a pre-qualification questionnaire to suppliers for completion, although the regulations and contract notice pro-formas are drafted on the basis that the contract notice will state the pre-qualification information required for submission by the response date in the notice. If the PQQ is immediately available for download from a suitable website and this is referenced in the contract notice, then the return date for the PQQ could be the same as the closing date for responses stated in the notice. Evaluate pre-qualification information The length of the evaluation period is not prescribed in the regulations. The evaluation of the pre-qualification stage is effectively a three stage process. Stage 1 is to reject the suppliers that fail the exclusion grounds, set out in Art 57 of the Public Sector Directive. The grounds set out in Art 57 include certain grounds for which it is mandatory for a contracting authority to reject suppliers (conviction for specified serious crimes). Stage 2 is to assess those remaining against any minimum levels of standards which may be required of suppliers in terms of technical or financial aspects. Stage 3 is to reduce the numbers down to a shortlist (if necessary) by ranking the suppliers according to the scores from the prequalification evaluation. Issue invitation to tender Invitations are issued to the shortlisted suppliers from the prequalification evaluation stage. A minimum shortlist of five has to be sought, subject to there being sufficient suitably qualified candidates. Deadline for receipt of tenders A uniform tender return deadline may be agreed with tenderers; otherwise the tender return deadline is a minimum of 10 days from the day after the invitation to tender is issued. Evaluate tenders and determine winner The evaluation of the tenders is on the basis of the award criteria. Issue standstill letters The standstill letter is issued once the winning tender has been decided upon following the evaluation. The standstill letter has to be sent as soon as possible after the award decision has been made and by the most rapid means practicable. It has to contain i) the criteria used to award the contract; ii) the name of the winning bidder; iii) the winning bidder s score; iv) the recipient s own score; v) the reasons for the award decision, including the characteristics and relative advantages of the winning bid and; vi) a precise statement as to the end of the standstill period. Mandatory standstill period A minimum 10 or 15 day standstill period has to be observed. If the standstill letters are sent to all tenderers (and any concerned candidates) by electronic or fax methods, then the minimum standstill period is 10 days; if one or more of the standstill letters are sent by other methods (such as post), then the minimum period is 15 days. Conclude contract Unless the implications of a legal challenge need to be considered, the contract can be concluded once the standstill period has passed. Dispatch Contract Award Notice A contract notice must be sent to the Official Journal within 30 days of the conclusion of the contract. If you have published your contract notice within Themis, there is the facility to copy common data across from the contract notice by clicking the red A button. A minimum of five have to be shortlisted, subject to there being sufficient suitably qualified applicants. 12

13 Restricted procedure public sector sub-central bodies Option of contract notice as call for competition Dispatch contract notice to OJEU and make procurement documents available on-line from publication date of notice 30 days minimum Accelerated timescale 15 days minimum Option of PIN as call for competition Dispatch PIN to OJEU Send invitation to confirm interest (requesting any additional prequalification information) & make procurement documents available on-line Deadline for receipt of pre-qualification information 35 days min & 12 months max from date of despatch to OJEU 30 days minimum Accelerated timescale 15 days minimum Evaluate pre-qualification information against selection criteria and determine shortlist for ITT Issue invitation to tender Deadline for receipt of tenders Mutually agreed date with tenderers, otherwise 10 days minimum Evaluate tenders and determine winner Issue standstill letters 10/15 days min Mandatory standstill period Conclude contract 30 days max Dispatch Contract Award Notice 13

14 Option of contract notice as call for competition A contract notice is one of two OJEU notices that can be used as a call for competition. This is the formal start of the award procedure. The minimum timescale for responses to the notice is 30 days. If an accelerated procedure has been duly justified, the minimum timescale becomes 15 days. It is common practice to provide a pre-qualification questionnaire to suppliers for completion, although the regulations and contract notice pro-formas are drafted on the basis that the contract notice will state the pre-qualification information required for submission by the response date in the notice. If the PQQ is immediately available for download from a suitable website and this is referenced in the contract notice, then the return date for the PQQ could be the same as the closing date for responses stated in the notice. Option of PIN as call for competition A Prior Information Notice is one of two OJEU notices which can be used as a call for competition. To be a valid call for competition, the PIN has to have been dispatched to OJEU at least 35 days and not less than 12 months before the issue of the invitation to confirm interest. Send invitation to confirm interest Where the call for competition is made using a Prior Information Notice (PIN), it is necessary to issue an invitation to confirm interest to the respondents to the PIN when an individual procurement procedure is commenced. The minimum timescale for responses is 30 days. If an accelerated procedure has been duly justified, the minimum timescale becomes 15 days. The invitation requires the respondents to the PIN to confirm their interest in the individual procurement procedure and also to provide any additional prequalification information that is required. The invitation to confirm interest cannot be sent earlier than 35 days from the date that the PIN was despatched to OJEU, or later than 12 months. Deadline for receipt of pre-qualification information The minimum timescale for responses to the notice is 30 days, or 15 days where an accelerated procedure is duly justified. It is common practice to provide a pre-qualification questionnaire to suppliers for completion, although the regulations and contract notice pro-formas are drafted on the basis that the contract notice will state the pre-qualification information required for submission by the response date in the notice. If the PQQ is immediately available for download from a suitable website and this is referenced in the contract notice, then the return date for the PQQ could be the same as the closing date for responses stated in the notice. Where a Prior Information Notice (PIN) is used as the call for competition the same timescales apply, which run from the day after the invitation to confirm interest is issued to the respondents to the PIN. Evaluate pre-qualification information The length of the evaluation period is not prescribed in the regulations. The evaluation of the pre-qualification stage is effectively a three stage process. Stage 1 is to reject the suppliers that fail the exclusion grounds, set out in Art 57 of the Public Sector Directive. The grounds set out in Art 57 include certain grounds for which it is mandatory for a contracting authority to reject suppliers (conviction for specified serious crimes). Stage 2 is to assess those remaining against any minimum levels of standards which may be required of suppliers in terms of technical or financial aspects. Stage 3 is to reduce the numbers down to a shortlist (if necessary) by ranking the suppliers according to the scores from the prequalification evaluation. A minimum shortlist of five has to be sought, subject to there being sufficient suitably qualified candidates. Issue invitation to tender Invitations are issued to the shortlisted suppliers from the prequalification evaluation stage. A minimum shortlist of five has to be sought, subject to there being sufficient suitably qualified candidates. Deadline for receipt of tenders A uniform tender return deadline may be agreed with tenderers; otherwise the tender return deadline is a minimum of 10 days from the day after the invitation to participate in negotiation is issued. Evaluate tenders and determine winner The evaluation of the tenders is on the basis of the award criteria. Issue standstill letters The standstill letter is issued once the winning tender has been decided upon following the evaluation. The standstill letter has to be sent as soon as possible after the award decision has been made and by the most rapid means practicable. It has to contain i) the criteria used to award the contract; ii) the name of the winning bidder; iii) the winning bidder s score; iv) the recipient s own score; v) the reasons for the award decision, including the characteristics and relative advantages of the winning bid and; vi) a precise statement as to the end of the standstill period. 14

15 Mandatory standstill period A minimum 10 or 15 day standstill period has to be observed. If the standstill letters are sent to all tenderers (and any concerned candidates) by electronic or fax methods, then the minimum standstill period is 10 days; if one or more of the standstill letters are sent by other methods (such as post), then the minimum period is 15 days. Conclude contract Unless the implications of a legal challenge need to be considered, the contract can be concluded once the standstill period has passed. Dispatch Contract Award Notice A contract notice must be sent to the Official Journal within 30 days of the conclusion of the contract. If you have published your contract notice within Themis, there is the facility to copy common data across from the contract notice by clicking the red A button. 15

16 Competitive Dialogue Dispatch contract notice 30 days minimum Make procurement documents available on-line from publication date of notice Deadline for receipt of pre-qualification information Evaluate pre-qualification info against selection criteria and determine shortlist for dialogue Issue invitations to participate in dialogue No prescribed minimum time for dialogue process Dialogue stage (may be staged if stated in Contract Notice or Descriptive Document) Close dialogue stage No prescribed minimum time for return of tenders Issue invitations for final tenders Deadline for receipt of final tenders May clarify, specify and optimise tenders Evaluate final tenders and determine winner May negotiate to confirm financial commitments or other terms by finalising contract terms Issue standstill letters 10 / 15 days min Mandatory standstill period Conclude contract 30 days max Dispatch Contract Award Notice 16

17 Dispatch contract notice This is the formal start of the award procedure. The minimum timescale for responses to the notice is 30 days. It is common practice to provide a pre-qualification questionnaire to suppliers for completion, although the regulations and contract notice proformas are drafted on the basis that the contract notice will state the pre-qualification information required for submission by the response date in the notice. If the PQQ is immediately available for download from a suitable website and this is referenced in the contract notice, then the return date for the PQQ could be the same as the closing date for responses stated in the notice. Deadline for receipt of pre-qualification information The minimum timescale for responses to the notice is 30 days. It is common practice to provide a pre-qualification questionnaire to suppliers for completion, although the regulations and contract notice pro-formas are drafted on the basis that the contract notice will state the pre-qualification information required for submission by the response date in the notice. If the PQQ is immediately available for download from a suitable website and this is referenced in the contract notice, then the return date for the PQQ could be the same as the closing date for responses stated in the notice. Evaluate pre-qualification information The length of the evaluation period is not prescribed in the regulations. The evaluation of the pre-qualification stage is effectively a three stage process. Stage 1 is to reject the suppliers that fail the exclusion grounds, set out in Art 57 of the Public Sector Directive. The grounds set out in Art 57 include certain grounds for which it is mandatory for a contracting authority to reject suppliers (conviction for specified serious crimes). Stage 2 is to assess those remaining against any minimum levels of standards which may be required of suppliers in terms of technical or financial aspects. Stage 3 is to reduce the numbers down to a shortlist (if necessary) by ranking the suppliers according to the scores from the prequalification evaluation. A minimum of three suppliers have to be shortlisted, subject to there being sufficient suitably qualified applicants. Issue invitations to participate in dialogue Dialogue stage The dialogue phase commences once the Invitation to Participate in Dialogue (ITPD) has been sent to the shortlisted bidders. The aim of the dialogue is to identify and define the means best suited to satisfying the contracting authority s needs. The purpose of the dialogue phase is to discuss solutions, develop ideas and explore options. This can involve formal presentations, development of design, dialogue on solutions, contract terms, finance, etc. If desired, the dialogue may be conducted in successive stages by reducing the number of solutions involved and this intention to conduct the dialogue in successive stages must be stated in the OJEU notice or descriptive document. Any reduction in the number of solutions is by application of the award criteria, also set out in the OJEU notice or descriptive document. There is no limit to the number of stages in the dialogue. Close dialogue stage Once the solutions capable of meeting the requirement are identified, the dialogue stage is formally closed and the remaining bidders informed. Issue invitations for final tenders Once the contracting authority is satisfied that there are solutions capable of meeting its needs, formal tenders are invited. Deadline for receipt of final tenders There is no prescribed timescale for return of tenders in a competitive dialogue procedure, subject to the general proportionality principle, i.e. of sufficient length with regard to the complexity of the contract. May clarify, specify and optimise tenders The rules for the competitive dialogue procedure expressly provide for post-tender clarification. Evaluate final tenders and determine winner The evaluation of the final tenders is on the basis of the award criteria, which apply throughout the procedure. May negotiate to confirm financial commitments or other terms Once the winning bid is identified, following the evaluation, it is permitted to negotiate with the winning bidder to finalise the terms, subject to there being no material change to the bid. Invitations are issued to the suppliers shortlisted from the pre-qualification evaluation stage. A minimum of three have to be sought, subject to there being sufficient suitably qualified applicants. 17

18 Issue standstill letters The standstill letter is issued once the winning tender has been decided upon following the evaluation. The standstill letter has to be sent as soon as possible after the award decision has been made and by the most rapid means practicable. It has to contain i) the criteria used to award the contract; ii) the name of the winning bidder; iii) the winning bidder s score; iv) the recipient s own score; v) the reasons for the award decision, including the characteristics and relative advantages of the winning bid and; vi) a precise statement as to the end of the standstill period. Mandatory standstill period A minimum 10 or 15 day standstill period has to be observed. If the standstill letters are sent to all tenderers (and any concerned candidates) by electronic or fax methods, then the minimum standstill period is 10 days; if one or more of the standstill letters are sent by other methods (such as post), then the minimum period is 15 days. Conclude contract Unless there is a formal legal challenge (in which case the contract must be suspended), the contract can be concluded once the standstill period has passed. Dispatch Contract Award Notice A contract notice must be sent to the Official Journal within 30 days of the conclusion of the contract. If you have published your contract notice within Themis, there is the facility to copy common data across from the contract notice by clicking the red A button. 18

19 Competitive procedure with negotiation 30 days minimum Accelerated timescale 15 days minimum Dispatch contract notice Make procurement documents available on-line from publication date of notice Deadline for receipt of pre-qualification information Evaluate pre-qualification information against selection criteria and determine shortlist to negotiate with Despatch PIN - not as call for competition- (optional) allowing shortened tender timescale Must be 35 days min and 12 months max at time of dispatch of contract notice to permit shortened tender timescale Issue invitation to participate in negotiation 30 days minimum Less 5 days for electronic submission 10 days minimum for accelerated timescale or where publication of a valid PIN not a call for competition Deadline for receipt of initial tenders Negotiations (may be staged evaluation if stated in contract notice) Inform all remaining tenderers of conclusion of negotiations & issue ITT for final tenders Evaluate final tenders and determine winner Issue standstill letters 10 / 15 days min Mandatory standstill period Conclude contract 30 days max Dispatch Contract Award Notice 19

20 Dispatch contract notice The minimum timescale for responses to the notice is 30 days, or 15 days where an accelerated procedure is duly justified. It is common practice to provide a pre-qualification questionnaire to suppliers for completion, although the regulations and contract notice pro-formas are drafted on the basis that the contract notice will state the pre-qualification information required for submission by the response date in the notice. If the PQQ is immediately available for download from a suitable website and this is referenced in the contract notice, then the return date for the PQQ could be the same as the closing date for responses stated in the notice. Deadline for receipt of pre-qualification information The minimum timescale for responses to the notice is 30 days, or 15 days where an accelerated procedure is duly justified. It is common practice to provide a pre-qualification questionnaire to suppliers for completion, although the regulations and contract notice pro-formas are drafted on the basis that the contract notice will state the pre-qualification information required for submission by the response date in the notice. If the PQQ is immediately available for download from a suitable website and this is referenced in the contract notice, then the return date for the PQQ could be the same as the closing date for responses stated in the notice. Evaluate pre-qualification information The length of the evaluation period is not prescribed in the regulations. The evaluation of the pre-qualification stage is effectively a three stage process. Stage 1 is to reject the suppliers that fail the exclusion grounds, set out in Art 57 of the Public Sector Directive. The grounds set out in Art 57 include certain grounds for which it is mandatory for a contracting authority to reject suppliers (conviction for specified serious crimes). Stage 2 is to assess those remaining against any minimum levels of standards which may be required of suppliers in terms of technical or financial aspects. Stage 3 is to reduce the numbers down to a shortlist (if necessary) by ranking the suppliers according to the scores from the prequalification evaluation. A minimum of three have to be shortlisted, subject to there being sufficient suitably qualified applicants. Issue invitation to participate in negotiation Invitations are issued to the shortlisted suppliers from the pre-qualification evaluation stage. Minimum shortlists of three have to be sought, subject to there being sufficient suitably qualified candidates. Deadline for receipt of initial tenders The minimum time period for return of initial tenders is 30 days, although this can be shortened by five days where electronic submission of tenders is provided for. The minimum time period may be shortened to 10 days where either i) an accelerated procedure has been duly justified or ii) a valid PIN has been published. For a PIN to be valid for these purposes it has to have been dispatched for publication at least 35 days and no more than 12 months before dispatch of the subsequent contract notice. Negotiations Negotiations are held with tenderers on the initial tenders and any subsequent tenders except the final tenders, to improve their content. The minimum requirements and the award criteria cannot be the subject of negotiation. If there are to be subsequent tender stages prior to final tenders, this has to be specified in the contract notice/invitation to confirm interest, or other procurement document. Inform all remaining tenderers of conclusion of negotiations and issue ITT for final tenders When the contracting authority intends to conclude the negotiations, it informs all the remaining tenderers and sets a common deadline for final tenders. The final tenders have to be on the basis of the minimum requirements. The regulations expressly state that no negotiations take place on the final tenders. There is no prescribed minimum timescale for return of final tenders. Evaluate final tenders and determine winner The evaluation of the final tenders is on the basis of the award criteria, which apply throughout the procedure. Issue standstill letters The standstill letter is issued once the winning tender has been decided upon following the evaluation. The standstill letter has to be sent as soon as possible after the award decision has been made and by the most rapid means practicable. It has to contain i) the criteria used to award the contract; ii) the name of the winning bidder; iii) the winning bidder s score; iv) the recipient s own score; v) the reasons for the award decision, including the characteristics and relative advantages of the winning bid and; vi) a precise statement as to the end of the standstill period. 20

21 Mandatory standstill period A minimum 10 or 15 day standstill period has to be observed. If the standstill letters are sent to all tenderers (and any concerned candidates) by electronic or fax methods, then the minimum standstill period is 10 days; if one or more of the standstill letters are sent by other methods (such as post), then the minimum period is 15 days. Conclude contract Unless the implications of a legal challenge need to be considered, the contract can be concluded once the standstill period has passed. Dispatch Contract Award Notice A contract notice must be sent to the Official Journal within 30 days of the conclusion of the contract. If you have published your contract notice within Themis, there is the facility to copy common data across from the contract notice by clicking the red A button. 21

22 Competitive procedure with Negotiation- public sector sub- central bodies 30 days minimum Accelerated timescale 15 days minimum 30 days minimum Less 5 days for electronic submission 10 days minimum for accelerated timescale or where publication of a valid PIN not a call for competition Dispatch contract notice Make procurement documents available on-line from publication date of notice Deadline for receipt of pre-qualification information Evaluate pre-qualification information against selection criteria and determine shortlist to tender Issue invitation to tender Deadline for receipt of tenders Evaluate tenders and determine winner Despatch PIN - not as call for competition- (optional) allowing shortened tender timescale Must be 35 days min and 12 months max at time of despatch of contract notice to permit shortened tender timescale Issue standstill letters 10/15 days min Mandatory standstill period 30 days max Conclude contract Dispatch Contract Award Notice 22