Procurement documents is defined broadly to include ‘any document produced or referred to by the contracting authority to describe elements of the procurement or the procedure, including the contract notice, the prior information notice where it is used as a means of calling for competition, the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents.
This section explains the new obligation to make the procurement documents available electronically (see also electronic procurement) and new and changed rules on contract packaging (‘lotting'), specifications, contract conditions and contract termination.
What is new?
Electronic availability of procurement documents
The regulations require the procurement documents to be available electronically from the date of publication of an OJEU notice (or the date on which an invitation to confirm interest is sent where a PIN is used as the call for competition).
The documents must be made available on the internet and there must be ‘unrestricted and full direct access', free of charge.
The URL for the procurement documents must be specified in the notice or invitation to confirm interest.
In certain limited circumstances the regulations allow the documents to be made available in other ways (with increases in time limits for tenders).
There are also time limits for supplying any additional information that is requested.
The regulations encourage the sub-division of requirements into ‘lots' (it is not mandatory) and this can encourage creative thinking about the procurement strategy.
If the council decides not to sub-divide the requirement the reason must be given in the procurement documents (or in the regulation 84 report). This is referred to as an ‘apply or explain' regime.
Councils can stipulate that tenders can be submitted for one, several or all lots.
The number of lots awarded to any one supplier can be limited by the council provided that the maximum number is stated in the contract notice or invitation to confirm interest. The procurement documents must set out the criteria that will be applied if a tenderer would otherwise be awarded more than the maximum.
If a tenderer wins more than one lot, the council can award a combined contract, but it must have reserved the right to do this in the contract notice or invitation to confirm interest.
Specifications can be drawn up by reference to performance or functional requirements which includes output and outcome-based specifications.
The option of using technical specifications drawn up by reference to European standards (accompanied by ‘or equivalent') and the like remains and a combination of both approaches is allowed.
Under the new regulations specifications can refer to a specific process or method of production or provision of the services, works or goods provided this is linked to the subject-matter of the contract and proportionate. This was not possible under the old rules.
Nonetheless, specifications must avoid artificially narrowing down competition.
Councils can now require social and environmental labels (including ‘fair trade' labels) as proof that products and services etc. have the required characteristics. But other appropriate means of proof must be accepted.
See also cross-cutting social clause.
Under PCR 2015 councils can include special conditions concerning the performance of a contract in the contract conditions (cross-cutting social clause).
Examples given in the regulations are economic, innovation-related, environmental, social and employment-related conditions.
This includes equality and health and safety matters. However, general corporate policies may not to be mandated in the contract conditions.
Minimum rates of pay should be determined by national legislation.
The special conditions must be mentioned in the contract notice (or PIN as the case may be) or in the procurement documents.
These conditions play no role in tender evaluation or contract award. They are fixed obligations that are binding on whoever wins the contract.
Termination of contracts
The regulations require councils to ensure that every contract they award contains provisions enabling the council to terminate the contract in specified circumstances.
The circumstances include a situation where the contract has undergone a substantial modification (changes to contracts) which should have triggered re-tendering.
However, the regulations state that in any event there is an implied term in contracts giving the authority power to terminate on the relevant grounds on giving reasonable notice to the contractor.