Public Procurement Ojeu

[Debora Mccaffery]

ThisPPN informs contracting authorities of the steps they need to take to ensure their legal obligations under the Regulations to publish certain notices in relation to public procurements continue to be met. This includes the circumstances where FTS or the Official Journal of the European Union (OJEU)/TED must be used, how to access FTS and an associated FAQ.

Some eSenders have advised that they are not able to support parallel publication to both FTS and OJEU/TED. In these circumstances they have switched publication over to FTS by default. You may need to register on TED in order to post notices related to ongoing procurements manually. Your eSender can advise you if this is the case.

If you wish to access public sector contract opportunities in the EU, you may continue to do so via OJEU/TED. Information about procurements launched by UK contracting authorities before 23:00 on 31 December 2020 will be available via OJEU/TED or the existing portals mentioned above.

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5. The changes are largely technical in nature and do not impact on procurement procedures which remain fundamentally unchanged. The basic requirements to advertise contracts, observe minimum timescales, and follow rules on technical specifications and award criteria, for example, remain in place.

10. The main changes to the Regulations relate to the inclusion of a Schedule listing other parties to the GPA and updating the obligations owed by contracting authorities under the GPA. For example, to accord no less favourable treatment to the works, supplies, services and economic operators of any GPA party, and extend the duty to apply GPA rules to public procurements with economic operators from GPA parties.

15. The TCA provides market access that goes beyond the level set in the GPA based on clear and enforceable rules and standards. It intends to protect UK-owned businesses based in the EU from the risk of discrimination in EU public procurements due to their UK ownership. It also aims to add competition to the public procurement markets in the utility sectors where there are monopolies.

18. In order to meet the OJEU obligation for ESIF Operations, the PCS system has been updated to ensure that these types of notices will be sent to TED/ OJEU automatically. All EU funded notices sent to OJEU will comply with the requirement to publish these notices on TED prior to their publication at a national level.

20. Please ensure that your procurement teams are aware of this change, as failure to complete this section, and therefore advertise in OJEU, may result in a financial correction being made. This could have a wider impact on both Lead Partner and Scottish Government. Further information for public sector buyers regarding this requirement is available at the Procurement Journey website[7].

21. Additionally, higher value procurements (for example, those where a Contract Notice or PIN as a call for completion was placed on TED before 31 December 2020 and are awaiting Contract Award Notices) should be concluded by publishing associated award notices on the TED system. The system release of PCS that took place on 8 July will ensure that these notices also comply with the requirement to be published on TED prior to their publication at a national level.

10. In addition, in order to be compliant with the TCA, you must, in any procurement under the UC(S)R 2016 where only qualified suppliers are invited to submit a tender, ensure that the number of suppliers invited to submit a tender is sufficient to ensure genuine competition without affecting the operational efficiency of the procurement. This rule is in the PC(S)R 2015 but not the UC(S)R 2016. You will need to treat the UC(S)R 2016 as if they have been amended in this way.

11. The TCA also provides that if a supplier submits a tender with an abnormally low price, the contracting authority may ask the supplier if the price takes any subsidies into account. This is not stated in the PC(S)R 2015 or UC(S)R 2016 and you will need to treat the PC(S)R 2015 and UC(S)R 2016 as if they had been amended to reflect this right.

12. The TCA provides[8] that with regard to any procurement (which includes non-covered procurement), contracting authorities in the UK must treat EU-owned suppliers based in the UK no less favourably than UK-owned suppliers based in the UK. This is subject to defence and national security and other general exceptions set out in the GPA and the additional exceptions in Annex PPROC-1.

Public contracts are awarded by users of public funds and entities operating in specific, non-competitive conditions (for example energy, water, public transport, postal services), for the purchase of services, supplies or civil engineering works.

Procuring entities can only use this procedure when negotiations are necessary due to the specific or complicated nature of the purchase however, the procuring entities in the defence and security, water, energy, transport and postal services sectors may use it as a standard procedure.

The value limits (thresholds) that mark when EU rules are used depend on the subject of the purchase, and who is making the purchase. These thresholds are revised regularly and the amounts adjusted slightly.

You can find the detailed description of the reasons for exclusion in the Directives in the EU legislation section (links at the bottom of the page), your national public procurement law and in the documents provided by the purchasing entity.

As a general rule, tenders for public contracts that fall under EU rules must be published in the online version of Supplement to the Official Journal of the European Union - the Tenders Electronic Daily (TED) portal. Public authorities may also choose to publish notices on the TED portal when a contract is of lower value. In TED the basic information for tenders is available in all official EU languages.

A procuring entity may also publish the prior information notice (PIN) on the Tenders Electronic Daily (TED) portal. The aim of the PIN is to provide you with information in advance about future procurement.

Tenders are evaluated by awarding points based on pre-published criteria, with each category worth a certain amount; for example the price offered may be worth 40%, technical characteristics 50% and environmental impact 10%.

You should be informed as soon as possible as to whether you have won the contract or not. If you have not been selected, you are entitled to an explanation of why your tender was rejected.

All centralised national administrations in the EU are obliged to accept your invoices. In certain countries, the public authorities at the sub-central level will also have accept electronic invoices by April 2020. Check the situation in your country.

Public sector procurement is subject to a legal framework which encourages free and open competition and value for money, in line with internationally and nationally agreed obligations and regulations. As part of its strategy, the government aligns procurement policies with this legal framework, as well as with its wider policy objectives.

In addition to these fundamental treaty principles, some general principles of law have emerged from the case law of the European Court of Justice. The most important of these general principles of law for you to be aware of in the procurement context are:

Since the 1970s, the EU has adopted legislation to ensure that the EU public procurement market is open and competitive and that suppliers are treated equally and fairly. The rules cover aspects such as advertising of contracts, procedures for assessing company credentials, awarding the contracts and remedies (penalties) when these rules are breached.

The EU rules are contained in a series of directives that are updated from time to time. Member states have to make national legislation (regulations) to implement the EU rules in domestic law by certain deadlines. The most recent update of the EU procurement directives was in April 2014. This followed a successful lobbying campaign by the UK government and our EU partners to negotiate a simpler, more flexible regime of procurement rules. Member states then had 2 years to implement these in national law i.e. by April 2016.

Once the 2014 EU Procurement Directives came into force, the government prioritised the Public Contracts Directive for early implementation because it would deregulate and simplify the rules for where most procurement spend and activity takes place.

The changes enable buyers to run procurements faster, with less red tape, and with a greater focus on getting the right supplier and best tender in accordance with sound commercial practice. The implementation of the Public Contracts Regulations 2015 took effect from 26 February 2015.

Above set financial thresholds, if you are buying supplies, services or works for central government, a non-ministerial department, executive agency, or non-departmental public body, you must follow the procedures laid down in the Public Contracts Regulations before awarding a contract to suppliers.

Procurement for wider public sector bodies, such as local government, health and education, is also subject to the Public Contracts Regulations. However, the threshold contract values for goods and services is higher as explained in Procurement Policy Note 04/17.

The Public Contract Regulations 2015 also include a requirement for contracting authorities to have regard to CCS guidance on the selection of suppliers and the award of contracts, and to ensure that suppliers pay their subcontractors within 30 days as is already required of contracting authorities.

To help raise awareness of the new EU Procurement Directives, CCS also arranged more than 200 face-to-face training sessions on the main changes in the directives for people working in the public sector. Read the training materials from these sessions.

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