OJEU procurement procedures

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. The directives are enacted in the UK by The Public Contracts Regulations.

Public projects 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 (for example Lottery funded projects).

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:

• Specification (see OGC EU Procurement guidance: Non-discrimination in technical specifications for more information).
• Criteria for rejection (legal, financial or technical unsuitability).
• Award of contracts (selection of the most economically advantageous rather than the lowest tender).

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).

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

• 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.

Member states have 2 years to implement the new rules into national legislation. Ref European Parliament News 15 January 2014.

[edit] Find out more

[edit] Related articles on Designing Buildings Wiki

• Appointing consultants.
• Auction theory.
• Balanced scorecard.
• Best value.
• Construction contract.
• Contract documentation.
• Government Construction Strategy.
• OGC (Office of Government Commerce - now absorbed into the Efficiency and Reform Group (ERG) within the Cabinet Office).
• Public procurement.
• Procurement route.
• Social Value Act.
• Specification.
• Tender documentation.
• Tender processes.

[edit] External references

• The British Property Federation has created a useful flow chart to help assess whether a project nneds to follow the OJEU process. WHEN IS AN OJEU OR OTHER COMPETITION REQUIRED FOR A LAND DEAL? 2013
• See Simap: Information about European public procurement for guidance on OJEU procurement rules.
• OGC: Introduction to the EU Procurement Rules.
• OGC: Guidance on thresholds.
• OGC: Guidance on OJEU notices.
• The Public Contracts Regulations 2006.
• OGC: Guidance on pre-qualification questionnaires.