In the first part of this DPS Byte we look at setting up a DPS and creating the initial list of economic operators admitted to the DPS ("DPS suppliers"). In the second part of this DPS Byte we look at the process for dealing with Requests to Participate (RTPs) from economic operators after the DPS is established.

DPS BYTE 2 – SETTING UP A DYNAMIC PURCHASING SYSTEM

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In the first part of this DPS Byte we look at setting up a DPS and creating the initial list of economic operators admitted to the DPS ("DPS suppliers"). In the second part of this DPS Byte we look at the process for dealing with Requests to Participate (RTPs) from economic operators after the DPS is established.

SETTING UP A DPS AND CREATING THE INITIAL LIST OF DPS SUPPLIERS

Call for competition

A contracting authority must publish a call for competition for the DPS in the Official Journal of the European Union (OJEU). The call for competition must make it clear that a DPS is involved. There is a box to complete in the standard form contract notice indicating that the notice relates to a DPS.

Central government bodies are required to use a contract notice (Standard Form 2).  Sub-central bodies have a choice: they can use either a contract notice (Standard Form 2) or a Prior Information Notice (PIN) as a call for competition (Standard Form 1). 

The Standard Form OJEU notices are available at: 

http://simap.ted.europa.eu/web/simap/standard-forms-for-public-procurement

Where the contracting authority sends a contract notice to the OJEU advertising the establishment of a DPS then it must also publish information on Contracts Finder in accordance with the rules in the PCRs on Contracts Finder.

The contract notice (or invitation to confirm interest where a PIN is used) should list the award criteria which will be used to evaluate the best tender when a contract award is made under the DPS. Award criteria set out in the contract notice or invitation to confirm interest may be more precisely formulated in the invitation to tender for a particular contract. See DPS Byte 3 for more information on the invitation to tender and contract award stage.

Minimum time periods

There are statutory minimum time periods for:

  • receipt of requests to participate (RTP)
  • the time within which a contracting authority must make a decision whether or not to admit an economic operator to the DPS

There is also a provision covering when a contracting authority must notify economic operators of its decision.

Minimum period for receipt of Requests to Participate (RTPs) from economic operator

  • Contracting authorities must allow a minimum of 30 calendar days for receipt of RTPs. Where the 30 day period expires on a weekend or bank holiday then the date for receipt of requests must be extended to the next working day.
  • The start of the 30 day period is triggered by the despatch of the contract notice or, where a PIN as a call for competition is used, by the despatch of the invitation to confirm interest
  • Contracting authorities must consider whether the minimum time period is sufficient, taking into account the complexity of the DPS.

Minimum time period for making decision on whether or not to admit an economic operator to a DPS

The general rule is that the contracting authority must make a decision whether or not to admit an economic operator within 10 working days of receipt of a Request to Participate (RTP). A period of 15 working days is permitted in individual cases where justified, such as where there is a need to examine additional documents or verify whether selection criteria are met.

Timeline from despatch of contract notice to appointment of the initial list of DPS suppliers

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There is an exception to this general 10/15 working day time period for evaluating RTPs and making a decision to admit. The exception is available when the contracting authority sets up the DPS, before it has issued an invitation to tender for a contract under the DPS. In this situation a contracting authority has the discretion to extend the time period for evaluation of RTPs and making a decision to admit.

This is likely to be a useful exception. A contracting authority may well wish to wait until expiry of the statutory time limit for submission of RTPs before it starts to evaluate the information in the RTPs and make decisions on admission of economic operators to the DPS. By using an appropriately extended evaluation period it can wait until the expiry of the initial 30 days for submission of RTPs and then consider all of the RTPs submitted during that period at the same time, in order to establish its initial list of DPS suppliers. 

Where a contracting authority wishes to adopt this approach then it must explain this in the procurement documents and provide details of the extended time period it will use. It is a good idea to provide this information in the OJEU contract notice.

Worked example of exception –  using a contract notice to advertise the DPS and allowing 20 working days after closing date for receipt of RTPs for evaluation and decision to accept or reject

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Notifying economic operators of the decision whether or not to admit them to the DPS

Once the contracting authority has made its decision whether or not to admit an economic operator as a DPS supplier then it must notify the economic operator of its decision “at the earliest possible opportunity”.

This provision is potentially problematic as it is imprecise and lacks clarity. It may well cause practical issues, particularly once the DPS is up and running and the contracting authority is considering RTPs on an ongoing basis. This is explored further below.

We recommend that the contracting authority provides an indicative timetable in the procurement documents for the process for appointment of initial DPS suppliers. This helps to maintain transparency and manage economic operators’ expectations.

Exclusion and selection stage

The rules on grounds for exclusion, selection stage criteria and the ESPD are the same as those applying to the restricted procedure. 

It is a little unclear whether or to what extent the "Lord Young" provisions on qualitative selection and use of the standard PQQ applies to the information requested and evaluated at the stage at which a DPS is established. For DPSs where the total value of awards to be made are estimated to exceed the relevant EU thresholds it is advisable to comply with the statutory guidance and use the standard PQQ wording.

REQUESTS TO PARTICIPATE IN AN ESTABLISHED DPS

Economic operators are entitled to submit a RTP at any time during the life of the DPS. The call for competition will continue to be “live” and the procurement documents must also continue to be available electronically.  

Contracting authorities are required to consider a RTP and make a decision whether or not to admit the economic operator within 10 working days of receipt (15 days in certain duly justified cases). The contracting authority must then notify economic operator of its decision at “the earliest possible opportunity” and add successful economic operators to the DPS supplier list.

Timeline for established DPS – receipt of RTP to appointment of new economic operator to list of DPS suppliers

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There is a potential lack of clarity about exactly when an economic operator is formally appointed to the DPS and is thus entitled to participate in the tenders run under the DPS. We suggest that in order to avoid confusion the contracting authority sets up a clear decision making procedure and timetable and includes this in the procurement documents. It is particularly important to avoid a period of uncertainty in terms of the status of the economic operator between the decision making and formal admission to the DPS supplier list. 

What works best will depend on the internal organisation and decision making of the contracting authority We suggest that the procurement documents make it clear that economic operators are only entitled to participate in tenders under the DPS after they have been both formally notified that they are successful and their name has been added to the DPS supplier list.

GENERAL REQUIREMENTS APPLYING BOTH TO SETTING UP THE INITIAL LIST OF DPS SUPPLIERS AND  CONSIDERING RTPS UNDER AN ESTABLISHED DPS

No charges for RTPs or for participation

It is not permitted to charge economic operators in relation to setting up or operation of the DPS.

Electronic communication

All communication must be by electronic means in accordance with the relevant provisions of Regulation 22.

Information to be made available by the contracting authority

Regulation 53 on electronic availability of procurement documents applies. This means that the procurement documents must be available on the internet, with unrestricted and full direct access free of charge. Where a contract notice is used the procurement documents must be available from the date of publication in the OJEU. Where a PIN as a call for competition is used the procurement documents must be available from the date on which the invitation to confirm interest is sent.

The procurement documents must include information on

  • the nature and estimated quantity of the purchases envisaged
  • how the DPS will operate
  • any division into categories and the characteristics defining those categories
  • the electronic equipment used and the technical connection arrangements and specifications

Information on the decision to accept or reject a RTP

As mentioned earlier, there is an obligation to inform an economic operator as soon as possible of the decision whether or not to admit the economic operator to the supplier list. Regulation 55 applies which means, for example, that contracting authorities must inform economic operators of the grounds for the decision. Where an economic operator makes a written request for information the contracting authority must, as quickly as possible, and in an event within 15 calendar days, give the economic operator reasons for the rejection of its RTP.

Standstill, contract award notice and Contracts Finder

There is no obligation to run a standstill period, publish a contract award notice in the OJEU or publish contract award information in Contracts Finder when the initial DPS list is established or when economic operators are added to the DPS suppliers list. This is because no public contract has been awarded.

DPS for light regime services

As explained in DPS Byte 1, only limited PCRs apply to the light regime and the detailed DPS procedural provisions do not apply. This means that there is considerable flexibility for a contracting authority when it sets up and runs a DPS type arrangement for light regime services. 

For example, once a DPS is up and running a contracting authority is not obliged to consider and make a decision on RTPs within 10 days of receipt. It may, therefore, choose to evaluate RTPs on a regular cyclical basis – perhaps on a regular day at the end of each month. The contracting authority could then make a formal decision and notify economic operators within 10 working days of that decision. It is advisable to make it clear that It is important that the timing of the decision making process is clear for all potential participants and so this should be set out in the procurement documents. It is advisable to make it clear that economic operators are only entitled to participate in tenders under the DPS after they have been both formally notified that they are successful and their name has been added to the DPS supplier list.

In the next DPS Byte 3 we will look at operating a DPS including the process for award of contracts and some tricky issues.