OJEU procurement procedures

NOTE: In January 2021 the UK government’s Find a Tender website replaced the Official Journal of the European Union (OJEU).

Cabinet Office has published Procurement Policy Note 08/20 - Introduction of Find a Tender, setting out the changes to procurement which came into effect at the end of the Brexit transition period.

[edit] Introduction

The European Union Procurement Directives establish public procurement rules throughout the European Union and apply to any public purchases above the defined thresholds. The purpose of the directives is to open up public procurement within the European Union and to ensure the free movement of supplies, services and works.

Public projects within the EU must comply with the regulations if the value of contracts is above specified thresholds. Aggregation rules apply to projects tendered in parts to prevent clients from avoiding the requirements of the regulations by simply dividing projects up into contracts that are below the threshold.

Private projects may be required to comply with the regulations if they are publicly subsidised.

The regulations set out rules requiring that such contracts must be advertised (contract notices published) in the Official Journal of the European Union (OJEU) (The requirements for OJEU contract notices can be found on the simap website). This is of particular importance because, unless OJEU rules are considered in the very early stages of a project, the time taken to advertise contracts can cause significant delays (up to 52 days).

The time allowed for tenderers to respond to a contract notice can be reduced under certain circumstances (such as if a prior information notice (PIN) was published or if accelerated procedures are being used).The regulations also describe allowable procedures to avoid discrimination against potential tenderers on the grounds of their origin in a particular member state.

Ideally, contracts for goods or services that might arise during the course of the project and could be subject to the OJEU procurement rules should be advertised at the outset of the project or soon as possible afterwards. This may include contracts requiring early specialist design input by the contractors.

The main construction contract might be advertised once planning permission has been obtained and there is some certainty that the project will proceed. Failure to advertise such contracts well in advance of the goods or services actually being required could result in long delays.

The exact timescales that must be adopted and the procedures for the award of contract will depend upon whether the tender is an:

Open procedure. There is no pre-qualification process or short-listing process. Anyone that responds to the OJEU notice is issued with the full contract documentation.
Restricted procedure. There is a pre-qualification process, and only short-listed candidates are invited to tender.
Competitive dialogue procedure. There is a pre-qualification process. Short-listed candidates are invited to take part in a dialogue process during which the nature of the project may be discussed and possible solutions may be developed. When the dialogue process is complete, final tenders are invited.
Competitive negotiation procedure. There is a pre-qualification process. Short-listed candidates are invited to take part in a negotiation process. This process does not have to follow any particular rules, and has no formal ending. This means that negotiations can continue even after the preferred bidder has been appointed.

The timescales for each of these procedures can be found in the appendix to EU procurement guidance: Introduction to the EU procurement rules.

There are reduced requirements for advertising certain services listed in part B of schedule 3 of the regulations (See The Public Contracts Regulations P72).

[edit] Updates

In January 2014, new rules were agreed by the European Parliament that:

Introduce a new criterion of the 'most economically advantageous tender' (MEAT) in the award procedure.
Introduce "Innovation Partnership" to allow public authorities to call for tenders to solve a specific problem without pre-empting the solution.
Introduce a "European Single Procurement Document" based on self-declarations so that only the winning bidder will have to provide original documentation.
Introduce new rules on sub-contracting and tougher provisions in relation to "abnormally low bids".
Make clear there is no requirement for the privatisation of public enterprises providing services to the public.

The Public Contracts Regulations 2015 implement parts of the 2014 EU Procurement Directives, defining the rules for purchasing of goods and services above certain price thresholds by public sector bodies in the UK (implemented in Scotland through the Public Contract (Scotland) Regulations 2015).

The implementation of the Public Contracts Regulations 2015 took effect from 26 February 2015. The changes they introduce enable buyers to run procurement processes faster, with less red tape, and with a greater focus on getting the right supplier and best tender.

Ref https://www.gov.uk/guidance/public-sector-procurement-policy#public-contracts-regulations-2015