On 27 May 2015 the Government’s Crown Commercial Service issued fresh guidance on the awarding of and commissioning of public works and services through framework agreements. This provides some important compliance updates for central government contracting bodies and suppliers accustomed to frameworks alike, notably in relation to a newfound requirement to publish notices in Contracts Finder when awarding “call-off” contracts under a framework.
SETTING UP AND COMMISSIONING THROUGH FRAMEWORKS
Framework agreements are essentially ‘foundation’ contracts that can be entered into between multiple contracting authorities and multiple potential suppliers. As their name suggests, they establish a framework of rules governing how contracts for the procurement of specific works and services covered by it can be awarded pursuant to it. Use of a framework allows contracts to be awarded without a separate publication and (where appropriate) call for competition, provided that the relevant conditions laid down in the framework documents (and those pertaining to its original procurement) are complied with.
KNOW YOUR AUTHORITIES: WHO CAN USE THE FRAMEWORK
A frequent bugbear for both commissioning authorities and supplier under frameworks concerns precisely which bodies can award and manage contracts under their terms. The Guidance emphasises that any contract notice published for a competition to attain a place on a framework must “clearly identify” those authorities which can use it.
Importantly, this can be done by listing these authorities by name and/or it can be done by “other means that makes them clearly identifiable”. The example that is given is that of stating a category denoting a “specific class of contracting authorities in a defined region that can be identified on the internet – such as Inner London Boroughs as listed at http://www.londoncouncils.gov.uk/londonfacts/londonlocalgovernment/londonboroughs.htm.)”. This gives authorities potentially wide scope to extend the availability of the framework to a broad category of awarding bodies, which in turn increases the range of bodies from which appointed suppliers can be given work.
However, we would always sound at least two notes of caution: firstly, one must take great care that a body through which work is proposing to be awarded clearly and unequivocally falls within the identifiable category set out in the contract notice. It will not be sufficient to rely on generic descriptions of the broader ‘type’ of authority that can award – so, for instance, saying that local authorities generally or any public body in South London can use the Framework will be too wide. The clarification in the Guidance seems to make abundantly clear the requirement for a specific online source where the presence or otherwise of the relevant authority within the category stated in the notice can be verified.
MULTI-PARTY SYSTEMS: DECIDE WHAT LEVEL OF COMPETITION AND HOW TO CONDUCT IT
The Guidance confirms that multi-party frameworks (i.e. where more than one supplie is appointed) can now comprise as few as two providers. Importantly, procuring bodies will now be able to commission call-offs through such frameworks by either (i) direct award without re-opening competition, (ii) mini-competitions for each call-off contract or (iii) a combination of the two.
Introducing the possibility of a mixed competitive / direct award framework is a new innovation under the Guidance, which can be implemented provided that:
- the procurement documents for the framework agreement state that either direct award or mini-competition can be used;
- those documents lay down specific criteria for determining whether a call-off contract will be awarded directly or following a re-opening of competition; and
- it is also made clear and transparent as to which elements or terms of provision can become subject to competition.
The requirement for transparency is emphasised in this part of the Guidance, so that suppliers on a framework can be clear on when direct awards to particular providers are and are not permissible by the authority in question. The example given in the Guidance is of direct award being provided for in the case of suppliers allocated to certain goods in specific regions, with “accompanying objective criteria” for re-opening competition potentially on the basis of a threshold (which, if exceeded, means a contract must be tendered) in respect of financial value or volume or products ordered or where the contract has “particularly complex requirements”.
The latter term would seem open to a factual interpretation in the specific scope and context of the framework goods and services in question, so a close dialogue between legal advisers and contract specialists on both the authority and supplier side would appear essential, both at the initial procurement stage in framing the criteria themselves and, also, when determining whether a particular contract should be opened up to competition.
ADVERTISING A FRAMEWORK OPPORTUNITY: KNOW YOUR ANIMAL!
The Guidance confirms that advertising in OJEU will be required where the framework’s maximum value exceeds the relevant EU threshold amount (approximately £112m for services or £4.3 million for works) and it does not fall into one of the applicable exclusions (such as for government legal services of audio or radio broadcasting).
When advertising in OJEU the Guidance reminds authorities and providers alike that the framework should not be for a period longer than four years. A duration longer than this must be clearly justified by the “subject matter” of the contract. Authorities thinking they might need a longer-lasting framework should seek legal advice on whether a framework is the appropriate mechanism, certainly before proceeding to advertise the opportunity as a framework. Likewise, providers appointed to or who have seen an advert for a Framework for longer than four years should seek legal advice as to whether it could be vulnerable to challenge on this basis.
The contract notice should also estimate not only the total value of the framework but also, “so far as possible”, the value and frequency of call-off contracts awarded under it.
CALL OFFS: WHEN, HOW AND FOR HOW LONG?
The Guidance also goes on to emphasise how call-off contracts, like their ‘parent’ frameworks should be for a duration appropriate to their value and subject matter. They can be made to extend beyond the expiry of their parent framework but not in such a way as to effectively sidestep the EU procurement rules; the CCS warns that “for example, it might be difficult to justify a 12-month call-off, very near the end of the framework itself”.
However, it does confirm that whilst call-offs subject to mini-competitions must be awarded in accordance with the award criteria set out in the original framework agreement (if these have not been clearly laid out then this could make it easier for providers to challenge call-off awards), it also clarifies that there is no mandatory standstill for call-off awards under a framework.