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AOF Commercial Toolkit

Commercial Guidance for the UK MOD Defence Acquisition Community

version 2.10.9 - August 2010

Content

EC Public Procurement Regulations

This page is an extract from the full topic guidance on EC Public Procurement Regulations [336KB PDF]. It details any Constraints associated with EC Public Procurement Regulations, provides a summary of the Authoritative Guidance and lists any essential reading, further reading or associated documents.

If you have any queries on this topic, please contact the Sponsor by e-mail: DGDC CS-2D-ASST-HD.

Constraints

The Public Procurement Directive 2004/18/EC is implemented in UK law by means of The Public Contracts Regulations 2006 ('the Regulations'), as amended by the Public Contracts and Utilities Contracts (Amendment) Regulations 2007 ('the Amending Regulations'), made under the 1972 European Communities Act.

Application of the Regulations may be subject to close scrutiny by Industry and the European Commission. For this reason, acquisition staff must take care to ensure that the appropriate rules and procedures are observed and that careful records are kept at all stages. The consequences for non-compliance can be severe.

Where the Regulations are not followed, the Commission may intervene and/or resort to legal action and tenderer(s) also have legal rights and remedies available to them. At best, alleged malpractice will cause the acquisition team additional work and project delay. At worst, if malpractice is confirmed, contract award decisions can be set aside and/or substantial damages awarded to the injured party.

Authoritative Guidance Summary

All procurement is subject to the principles of the Treaty for the Functioning of the European Union (formerly the EC Treaty): non-discrimination; equal treatment; transparency; mutual recognition and proportionality.

The Regulations apply to contracts not covered by an exemption and above specified thresholds. The thresholds vary according to the type of goods, services or works involved and are revised periodically. Disaggregating requirements into 'penny packets' to circumvent the Regulations is prohibited.

The main exemptions applicable to MOD procurement are the 'warlike stores' exemption under Article 346 of the Treaty for the Functioning on the European Union (formerly Article 296 of the EC Treaty) and the 'security and secrecy' exemption where the contract involves special security measures. Exemptions should be construed restrictively and applied in a proportionate manner.

Technical specifications must normally be set out in the contract documents. Any specification, which has the effect of favoring or eliminating particular companies, is prohibited. Technical specifications in this context are not specifications of the requirement but standards, performance or functional requirements.

The Regulations set out different procurement procedures: the Open, the Restricted, the Competitive Dialogue and the Negotiated procedures. The Regulations allows the Negotiated procedure to be used with or without prior publication of a contract notice in the Official Journal of the European Union (OJEU).

The Regulations allow for certain procurement techniques - Framework Agreements, Dynamic Purchasing Systems and Electronic Auctions - that may be used in conjunction with any of the procurement procedures set out in the Regulations.

Procurement under the Regulations must adhere to common advertising rules and standard time-limits with regard to publication of notices in the Official Journal of the European Union (OJEU).

Acquisition teams undertaking procurement under the Regulations must ensure:

  1. The tender and contract documents must be drafted with care to ensure the correct information is given and the correct procedures are followed;
  2. The selection criteria are unambiguous and made available in good time to all potential suppliers in the supplier selection process;
  3. The award criteria are unambiguous and made available in good time to all tenderers in the tender assessment process;
  4. Any evaluation is carried out objectively and solely on the basis of the selection and award criteria provided to the potential suppliers, tenderers and participants;
  5. All decisions are properly recorded in a registered file and readily available for scrutiny in the event of a legal challenge.

During competitions under the Open, Restricted, Accelerated, Negotiated or Competitive Dialogue procedure, there must be a standstill period that allows for:

  1. Effective pre-contractual remedies for an aggrieved party;
  2. Communication of both award decision and reasons;
  3. Standstill period of 10 calendar days as a minimum between communicating the award decision to all tenderers and contract conclusion; and
  4. Automatic suspension in case of application for review by the Court.

Where the standstill period does apply, DEFFORM 47B EU (Edn 09/08) must be used to require the successful tenderer(s) to be committed to proceed with the contract as from the end of the standstill period if the MOD calls on them to do so.

After contract award the Regulations require the issue of a contract award notice within 48 days, a debrief to tenderer(s) within 15 days of a request being received and the provision of information for EC statistics and records.

Essential Reading

Associated Documents

Additional Information

The Official Publications Office contact details:

  • European Union
  • Publication of Supplement to the Official Journal of the European Communities
  • 2, rue Mercier
  • L-2985 Luxembourg
  • Telefax:
  • (+352) 29 29 44 619
  • (+352) 29 29 44 623
  • (+352) 29 29 42 670
  • email: mp-ojs@opoce.cec.eu.int
Change History

Change History

1 May 2010
Topic updated to incorporate lessons learned on the Remedies Regulations in relation to the Voluntary Transfer Notice and the Award Decision Notice. Paragraphs 25, 214, 224 and 331 and Annex I amended.
1 April 2010
Topic updated to show that the EC Treaty is now referred to as the Treaty on the Functioning of the EU and Article 296 is now referred to as Article 346. Paragraphs 4, 6, 18, 19, 25, 30, 32, 34, 39, 40, 58, 176, 223c, and Annex D affected. Annex A amended to give links to the Regulations and the latest associated amendments. New Appendix 2 to Annex I added (Standard Notice of Contract Award Decision EC (Edn 09/08)) for use when procurement procedures were started before 20 December 2009. Paragraphs 329 and 332 amended to reflect the use of the new appendix.
1 February 2010
Major revision to reflect the EC Remedies Directive which came into force in December 2009. Paragraphs affected: 145-147, 149-154, 214-225, 232, 309, 313-317, 320-324, 328, 331, 340-360, Annex H and Annex I. Also, Annexes B and E updated to reflect the revised EC Public Procurement thresholds take effect from 1st January 2010. Annex C revised to give two links to CPV codes.
1 December 2009
Updated at paragraphs 90 – 120 to reflect the latest guidance on the Competitive Dialogue process. New Annex K also added.
1 September 2009
Updated guidance on supplier selection and contract award criteria covering Framework Agreements: Call Offs section (paragraph 176), the Supplier Selection, and Award Criteria (paragraphs 240, 242, 262, 264 and 267).
1 May 2009
Change of Sponsor from DCD-DCS2-AD3. Minor amendment to include extension in use of restricted accelerated procedure to boost the economy through 2009 2010: new paragraphs 84 and 85; old paragraphs 84 to 321 renumbered sequentially.
1 February 2009
Change of Sponsor from DCD-DCS2-4a.
1 September 2008
Updated to comply with the drafting conventions for the AOF and to make it more user friendly. Guidance is organised under the following main headings - The Regulations, EC Treaty Principles; Applying the Regulations; Exemptions, Reserved Contracts; Thresholds, Technical Specifications and Standards; Procurement Procedures; Common Advertising Rules; Time-Limits; Supplier Selection and Award Criteria; Tender and Contract Award; Remedies; Statistics and Records.
Commercial officers should note that there are also some changes to the guidance as follows:
  • 2007 version of the Common Procurement Vocabulary (CPV) comes into force on 15 Sep 08, see Paragraph 21 and Annex C;
  • New guidance in Reserved Contracts, see Paragraph 51 and 52;
  • Conditions for use of Accelerated Restricted Procedure (that also apply to Accelerated Negotiated Procedure), see paragraphs 83 to 85;
  • New HMT/OGC Guidance on the Competitive Dialogue procedure, see paragraph 90 and Annex G;
  • Updated guidance on conditions for use of Negotiated procedure, see text in yellow in paragraphs 119 to 147;
  • Updated guidance on supplier selection and contract award criteria, see text in yellow in paragraphs 246 to 257 and 267 to 275; and
  • New procedure for Standstill Period, see text in yellow in paragraphs 288 to 307 and Annexes H and I.
1 August 2008
Change to Sponsor title.
1 March 2008
The Public Contract Regulations 2006 has been amended by the Public Contracts and Utilities Contracts (Amendment) Regulations 2007, which can be found at Appendix 1 to Annex A. Their primary purpose was to reflect the accession of Bulgaria and Romania to the European Union and to make some other technical clarification that had been identified since the Regulations came into effect. The opportunity was also taken to revise the way thresholds are referenced, primarily to remove the need to make further amending regulations to reflect new threshold figures which come into force every two years. The topic has been updated to reflect the main changes. There are also minor changes to the guidance on Part B services (Paragraph 17), thresholds (Paragraph 36) and re-advertising requirements (Paragraph 117).
1 February 2008
Revised due to the introduction of new thresholds to apply to the Regulations from 1 January 2008 (see Annex D).
1 August 2007
Guidance on Framework Agreements has been revised to reflect best practice and lessons learnt (in particular paragraphs 66 to 79).
1 June 2007
Revised to incorporate minor changes to: the invoking of the secrecy and security exemption (Paragraphs 24 to 26) and the warlike stores exemption (Paragraphs 27, 28 and 30); lessons learnt on the Competitive Dialogue (Paragraph 64); framework agreements (Paragraphs 66 and 67); and publication of selection criteria in OJEU notices (Paragraph 118). Also, change to Sponsor title.
1 May 2007
change to Sponsor from CSG-GenCon.
1 February 2007
Updated to include:
  • New Interpretive Communication from the EU Commission on Article 296 (Paragraphs 27 to 32 and Annex C);
  • Clarification on the Restricted procedure (Paragraph 53), the Competitive Dialogue procedure (Paragraph 64), Framework Agreements (Paragraphs 64 and 74) and re-advertising requirements (Paragraph 117);
  • Further guidance on the mandatory standstill period (Paragraphs 142 and 148) and legal challenges (Paragraphs 152 and 153).
1 October 2006
The EC Public Procurement Regulations have been updated to reflect recent OGC guidance on the Negotiated Procedure (paragraph 57) and the Competitive Dialogue Procedure (paragraphs 63 and 64) and legal advice on Framework Agreements (paragraph 67).