Since the introduction of the new public procurement regulations in February 2015, there has been a mixed understanding of what contracting authorities are required to do in respect of using the government’s tender opportunity portal, “Contracts Finder”. In fact, there was an earlier blog on this very point which has had to be updated such is the ongoing confusion!
The Regulations (106) are pretty clear when it comes to using Contracts Finder for opportunities that are advertised in the Official Journal of the European Union (OJEU), i.e. for all above threshold contracts. That is, all above threshold opportunities must also be advertised on Contracts Finder and in any event, not later than 24 hours after posting the Contract Notice in OJEU.
The situation is however more blurred when it comes to advertising below threshold opportunities which is covered under Regulation 110.
Thankfully, Crown Commercial Service, an executive agency sponsored by the Cabinet Office, has published some guidance.
In short, any below threshold opportunity that is over £10,000 (Central Government Bodies) or £25,000 (Non Central Government Contracting Authorities including NHS Trusts) and “where a contracting authority advertises a contract award opportunity”, (Regulation 106(1)) then it must also place the opportunity onto Contracts Finder. Note the specific use of the following wording:
“where a contracting authority advertises a contract award opportunity”.
A Contracting Authority is only required to place the opportunity on Contracts Finder if it advertises the opportunity itself, such as on its website or in a relevant publication such as a trade magazine or local paper. There is no requirement to publish the opportunity on Contracts Finder if the opportunity is not advertised elsewhere.
In practice, many contracting authorities will have internal procedures (such as “Standing Orders”) in place for advertising its below threshold opportunities. For example, it may require that opportunities where the estimated value of the contract to be awarded is greater than say £75,000 then it will advertise the opportunity. Under this example a contracting authority may advertise the opportunity on its website but if it does so, then it must also publish the opportunity on Contracts Finder. Alternatively, it may decide simply to use Contracts Finder as the means of advertising the opportunity. Both are perfectly acceptable and result in the opportunity being placed on Contracts Finder.
A contracting authority trying to circumnavigate the Regulations by not wishing to advertise an opportunity could quite legitimately not advertise the opportunity at all and not place the opportunity onto Contracts Finder. They could do this by ensuring that their own internal procedures set the threshold for advertising an opportunity at a level equal to or just below the minimum OJEU thresholds. However, Cabinet Office may take a rather dim view of this approach and if their “Mystery Shopper” service revealed such activity, it may take action on the basis that an authority could be flouting the general principles of competition and transparency in public procurement.
Therefore, the lesson to learn here is for contracting authorities to update their procurement policies and standing orders so that they comply with the new Regulations and in particular, set clear criteria around those opportunities that will remain “closed” and those which will be “advertised”. In the case of “advertised” contracts, over the £10k/£25k thresholds, then these must also appear in Contracts Finder.
The new Regulations are intended to encourage opportunities for SME organisations to secure public contracts. Requiring contracting authorities to advertise certain opportunities on Contracts Finder, should allow greater opportunities for smaller companies to compete for public sector work. Again, we’ve yet to see this in practice, but no doubt we will start seeing the statistics soon?
Any positive outcomes you’ve had from using Contracts Finder (either buyer or supplier) we’d love to hear from you……..
P.S. The difference between “Works” and “Services and Supplies” in terms of above and below threshold is quite marked. Currently, the threshold for “Services and Supplies” is £172,514 (£111,676 for Central Government Bodies) and £4,322,012 for “Works”. Contracting Authorities may therefore wish to set appropriate internal procedures for advertising opportunities. This could be different for “Services and Supplies” to “Works” to enable a greater degree of flexibility in how it administers its own procedures. For example, if an authority decided to advertise every opportunity over a level of say, £50,000 then it would soon get inundated with responses. This could start to become an administrative burden on an organisation. Therefore, it may be more appropriate to distinguish between “Works”, “Services” and “Supplies” to ensure that genuine opportunities generate the appropriate level of response.