In accordance with the EU Procurement Directives, contracting authorities that intend to carry out procurements must use one of the procedures stipulated in the UK Regulations. The procedures stipulated in PCR 2015 are: open; restricted; competitive dialogue; competitive procedure with negotiation; innovation partnership; and negotiated procedure without prior publication. The following procedures are available under the UCR 2016: open; restricted; competitive dialogue; negotiated procedure with prior call for competition; and innovation partnership.
In accordance with the EU Procurement Directives, as a general rule, purchasers subject to the PCR 2015 must choose between the open and restricted procedures and are only permitted to use the negotiated or competitive dialogue procedures in limited circumstances (typically where the contract is too complicated for the other procedures). The negotiated procedure without prior publication essentially provides for the award of a contract to one player without a competitive process taking place. This cuts against the thrust of the procurement regime, therefore situations in which it may be used are interpreted strictly by the courts. The details of this procedure are set out in 7a below. The innovation partnership procedure was introduced in the Public Sector Directive and is provided for in the PCR 2015. This new procedure is intended to allow for both the research and development and eventual purchase of an innovative product or service to take place within the same single procurement process, during which the number of partners may be reduced in stages (with transparency and other safeguards built in). It is designed for particularly complex procurements and is intended to enable long-term working arrangements (a partnering type arrangement as opposed to a legal partnership) between the public and the private sector to develop an 'innovative' good, work or service, which the public sector subsequently purchases.
It is mandatory for contracting authorities to publish contract notices electronically. Subject to certain exceptions, contracting authorities are also now required to offer unrestricted and full direct electronic access, free of charge, to the procurement documents from the date of publication of the contract notice in the Official Journal. From October 2018, contracting authorities will be required to switch to full electronic communication of tenders i.e. the electronic submission of documents such as requests to participate, invitations to participate and electronic submission of tenders by economic operators.
As noted above, contract notices are published in the Official Journal. The website is http://eur-lex.europa.eu/oj/direct-access.html.
The UK position does not differ from the EU position – prospective bidders must be excluded from the competition in some situations and can be excluded in others. In practice, this results in a pre-qualification process for all tenders.
Regulation 57 of the PCR 2015 sets out the mandatory rejection criteria for economic operators including convictions for certain offences (e.g., conspiracy, bribery, fraud or corruption) on the part of the economic operator or its directors. Regulation 58 clarifies that contracting authorities can reject economic operators that do not demonstrate sufficient financial or economic standing and/or that do not demonstrate sufficient technical or professional ability.
Similar provisions apply under the UCR 2016, but a utility may also reject bidders on the basis of its own established criteria.