In the fourth part of our series on contract management pitfalls, we look at the risks arising out of varying the terms of construction contracts.
The 2015 Regulations introduce a new definition of ‘procurement documents’ which replaces and extends a similar term in the previous 2006 Regulations. This means “any document produced or referred to by the contracting authority to describe or determine elements of the procurement or the procedure”. This is clearly very broad and includes documents such as the OJEU contract notice and other notices, the technical specifications, the proposed contract conditions and any descriptive document, as well as any ’additional documents’ relating to the tender process.
Regulation 53 introduces a number of key requirements for purchasers in terms of how they communicate with tenderers – they must:
- offer “unrestricted and full direct access free of charge” to the procurement documents from the date of publication of the OJEU contract notice or ‘invitation to confirm interest’ (where a prior information notice (PIN) has been issued); and
- specify in the OJEU contract notice or invitation to confirm interest (if applicable) the internet address at which the procurement documents are accessible.
A further change introduced by Regulation 53 is that purchasers must make the procurement documents available “by means of the internet”. There are some exceptions to this requirement where they are confidential in nature (such as TUPE information). This means that the 2015 Regulations are making electronic availability on the internet the norm.
The big change here is that purchasers will have to have all of the contract documentation ready before publishing any OJEU contract notice or invitation to confirm interest that previously might have been prepared later in the tender process. For example, under the restricted procedure, whilst the pre-qualification questionnaire (PQQ) has arguably been drafted by the time the OJEU contract notice was issued, the invitation to tender (ITT) and contract would often be left until afterwards. Sometimes this was for capacity reasons but it also meant that it was possible to reflect in the ITT and contract any points arising during the PQQ stage.
Under the 2015 Regulations purchasers must now have all of the procurement documents available ready for immediate issue when publishing the OJEU contract notice or the invitation to confirm interest. As well as this covering documents such as the PQQ, ITT and contract, which are expressly included in the definition, purchasers will also need to think carefully about all of the documents that are to be provided during the procurement process and whether they are to be treated as procurement documents and so need to be ready in advance.
In some procedures, usually more complex ones, it is difficult to see how the 2015 Regulations will apply practically. It may not be possible to produce all the procurement documents at the date of publication of the OJEU notice. This could either be because the relevant information is not yet available or because of the procedure being used. For example, in the case of the competitive procedure and the new competitive procedure with negotiation, one of the reasons for using them is that the contract cannot be awarded without a negotiation stage because of the complexity or legal and financial nature of the purchaser’s requirement or the risks associated with it. Both procedures expressly provide for later iterations of tender and contract documentation. It is likely that over time guidance will emerge (whether from government or the courts). If purchasers have to make significant changes to the procurement documents they should, as required by Regulation 47, extend the time limits for the receipt of tenders.
Regulation 22 of the 2015 Regulations requires that all communication and information exchange is by electronic means of communication. ‘Electronic means’ is defined in the 2015 Regulations as electronic equipment used to process and store data that is “transmitted, conveyed and received by wire, by radio, by optical means or by any other electromagnetic means”.
Regulation 22 adds that, however contracting authorities choose to communicate by electronic means, this must be non-discriminatory, non-restrictive and use or work with products in general use.
There is a staggered introduction of the requirements on purchasers to communicate electronically under paragraphs (1) to (7) of Regulation 22. The majority of the requirements do not come into force until 18th October 2018. However, the following requirements will come in to force as follows:
- for dynamic purchasing systems and electronic catalogues on the same day as the 2015 Regulations come into force; and
- for central purchasing bodies on 18th April 2017.
Purchasers who are able to comply with these requirements before these dates will be able to take advantage of reduced timescales for the return of tenders in the open and restricted procedures.
The European Single Procurement Document or ESPD (a new document introduced by the 2015 Regulations) must be electronic from 18th April 2017. We say more about the ESPD in later e-briefings.
There are some limited exceptions to the mandatory use of electronic tendering where specialised tools or file formats are used.
Implications for purchasers
This combined change of timing and means of availability of procurement documents and of electronic tendering requirements removes significant flexibility from purchasers. It will also limit the opportunities to take on board issues from one stage of a tender process in a later stage. However, clearly the hope is that it will lead to more organised, transparent and consistent procurement processes in ways that will benefit both purchaser and tenderer.
It also means that there will be a considerable amount of preparatory work that some purchasers may need to do in terms of internal procedures, procurement and contract specification and drafting capability etc to be able to comply with the 2015 Regulations before starting tender processes under them.
For more information
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