One of the more contentious new points in the 2013 EU Procurement Directives was around availability of procurement documents. The basic text talked about all documents being available at the time of the contract notice, which has certainly not been the practice in the vast majority of historical public procurements.
But many observers have pointed out that this is not just counter to existing practice; it is very difficult in many cases, and arguably impossible in some. For instance, in a competitive dialogue, the request for final tender, or indeed the final contract, cannot be developed or communicated until the prior stages of the procurement and the supplier discussions have been completed.
Now the UK’s Crown Commercial Service (CCS) has published some useful guidance on the topic. It is included in a wider piece of guidance on “electronic procurement and electronic communication” which covers eProcurement, Dynamic Purchasing Systems and Auctions as well as the availability of documents issue.
That guidance has in turn received a helpful commentary from law firm Mills and Reeve (very good on public procurement matters) on the specific availability issue. Whilst the guidance obviously only relates to the UK, it and the commentary is certainly worth reading by anyone in Europe wrestling with the issue of how to handle the new rules.
The problem is the very wide definition of “procurement documents”, which is as follows:
“procurement document” means any document produced or referred to by the contracting authority to describe or determine elements of the procurement or the procedure, including the contract notice, the prior information notice where it is used as a means of calling for competition, the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents.
As we said, this is a step change in what has been common practice. Most buyers will prepare the procurement documents on a stage by stage basis, and so this has caused considerable concern amongst contracting authorities. Challenge is another concern. Could a bidder make a challenge on the basis that one of the procurement documents was not published electronically on day one?
CCS has taken what seems like a common sense approach to the subject, although we should stress that this could still be tested by the courts.
“However, CCS take the view that this provides a wide explanation of what might constitute procurement documents and that where individual regulations refer to “procurement documents”, what is meant by that wording changes based on the different stages of the process that has been reached. As the procurement and competition becomes more crystallised, CCS expect more of the documents falling within that wide definition of procurement documents to be generated and therefore supplied. In contrast, at very early stages, fewer of the documents, if any, would be included. We believe a purposive interpretation is appropriate here”.
We assume by “purposive” CCS means we need to look at the underlying purpose of this regulation rather than the exact wording. The key purpose is presumably to allow potential supplier is to make a reasonable decision on whether to bid at the start of the process. For some processes, such as competitive dialogue, it is impossible to provide all the key documents up-front. As CSS goes on to say:
“This would mean that for procedures involving negotiations, or two stage process, the contracting authority would need to publish all the documents that are available so the market could make the decision on whether to express an interest or not. In construction for example, detailed specifications are normally not available until further into the procurement process and therefore those documents would not be required to be published at the advert stage. However the procurement documents that explain what the final output would be, volume/size, any specific specialities etc would be required at advert stage… These documents would then be added to as more detailed information is developed”.
It is worth noting, as Mills and Reeve does, that even if a firm did challenge, they would have to show that they had been disadvantaged by the fact that all the information was not made available at the initial stage. That might prove difficult, we suspect.
So what is the advice for public procurement practitioners? It certainly seems sensible to have all the documents available that the bidders need to respond to the initial stage of the competitive process. So that probably means not just the PQQ or ITT (if it is an Open procedure) but enough in the way of specifications, draft contract and so on. But clearly, if it is a multi-stage negotiated type process, you cannot realistically have the final ITT to share.
If it is a Restricted procedure competition, then it is probably wise to have the tender documents as well as the PQQs available at time of contract notice – although one suspects that some small changes are not going to matter too much.
Overall, we have mixed feelings about this new provision in the directive. Some previous practice was very poor – contract notices or PQQs issued before the contracting authority really had a clue what they wanted to buy, with long delays to follow or even an aborted processes. But this change has introduced a whole lot of new uncertainties and constraints – it does seem to be perhaps a clumsy and proverbial sledgehammer to crack the nut.