Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
Regulation 53 of the Public Contracts Regulations 2015 requires an organisation subject to the EU procurement rules to offer on the internet, “unrestricted and full direct access free of charge to the procurement documents from the date of the publication” [of the OJEU notice].
“Procurement documents” is defined in Regulation 2 and includes the contract terms, specification, payment mechanism and key performance indicators, the invitation to tender documentation and tender submission requirements.
You could be forgiven for having thought that this was pretty clear. There were some issues around whether it was legitimate to require prospective tenderers to register before giving them access to the procurement documents and over how this Regulation was intended to operate in procedures such as competitive dialogue where the documents are developed through the dialogue stage. However, there was no suggestion that you could be excused from making some of the procurement documents available, at least in some draft minimally developed format.
Then along comes the Cabinet Office to change this view, in the form of the Crown Commercial Service (“CCS”) Guidance on Electronic Purchasing and Electronic Communications .
This guidance fundamentally changes the nature of the debate on this Regulation. On page 13 that guidance (when talking about the restricted procedure) says that, “CCS take the view 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.
In other words, the CCS are saying that the meaning of the words “procurement documents”, as defined in Regulation 2, is different in different Regulations. Where the “procurement documents” are referred to in Regulation 53, they seem to be saying that this does not include documents that have not been produced before the OJEU notice is submitted.
The guidance goes on, “As the procurement and competition become 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.”
This approach does seem rather to have come from the “Humpty Dumpty School of Interpretation” . It also appears to be contradicted by the October update of the CCS Brief Guide to the EU public contracts Directive . This repeats the wording from the February 2015 version to say that, “Electronic versions of the procurement documentation must be available through an internet URL immediately on publication of the OJEU contract notice.”
Where further procurement documents are added “as and when they are developed”, they are clearly not “available…immediately.”
The real question here, though, is not so much whether the CCS are right, but whether you can follow their guidance on “Electronic Procurement” with impunity.
Assuming that it is a breach of the Regulations not to make the procurement documents available before submitting the OJEU notice, this breach will occur when the OJEU notice is published. A disgruntled tenderer would then have 30 days from that point to bring a challenge. As long as sensible time limits are used in the tender process, it is unlikely that any tenderer will have been excluded from the procurement process within that time. Since tenderers only tend to think about challenges after they have “lost”, it is very unlikely in practice that anyone would challenge here.
Other challenges are possible, but still unlikely to succeed. Whilst a tenderer could complain to the Mystery Shopper scheme, since this is handled by the Cabinet Office, they are hardly going to criticise an organisation that follows their own guidance!
The only area to be concerned about is if the procurement is for works, services or supplies part funded through EU grant. If the European Commission takes a different view to the CCS here, a failure to make the procurement documents available from the date of publication of the OJEU notice could be regarded as a breach that leads to a clawback of that European grant.
We would still recommend that you do draft the procurement documents “up front”, as this is good procurement practice. However, there is now support from the Cabinet Office for those that choose not to do so.
 Crown Commercial Service Guidance on Electronic Purchasing and Electronic Communications published in September 2015
 “When I use a word”, Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” – Lewis Carroll 1832-98, Through the Looking Glass, Chapter 6.
 Crown Commercial Service Guidance A Brief Guide to the EU Public Contracts Directive (2014) October 2015 version
For more information
For advice on EU procurement issues please contact Andrew Millross .
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