The bidding processi Notice
Above-threshold53 contracts must be advertised on the Find a Tender Service (FTS). UK authorities can continue to use the Official Journal of the European Union in addition to the FTS. The PCR also require contracting authorities to publish details of these contracts on the government portal, Contracts Finder. Similarly, the PCR require that, where an authority advertises contracts that meet lower minimum thresholds (£10,000 or more in the case of central government authorities and £25,000 or more for sub-central contracting authorities or NHS trusts), it must also publish information about the opportunity on Contracts Finder regardless of any other means it uses to advertise the opportunity. This requirement does not apply to contracting authorities carrying out devolved functions in Scotland, Wales and Northern Ireland. In Scotland, contracts that meet a minimum threshold of £50,000 (for supplies and services contracts) or £2 million (for works contracts) must be advertised on the Public Contracts Scotland website.54ii Procedures
For above-threshold contracts, the Procurement Regulations generally require use of one of the prescribed procedures. Under the PCR, these are the open, restricted, competitive with negotiation, competitive dialogue and innovation partnership procedures. The PCR also provide for the negotiated procedure without prior publication of a notice (that is, a direct award) in certain exceptional circumstances. The procedures available under the UCR are the open, restricted, negotiated, competitive dialogue and innovation partnership procedures.
The PCR and UCR include light-touch regimes55 for the award of contracts for health, social, education and other specific services.56 Subject to compliance with certain mandatory requirements (e.g., principles of transparency and equal treatment), contracting entities have significant flexibility in determining the procedures to be applied.
The PCR apply a number of procedural requirements to below-threshold contracts. In addition to the advertising requirements (described in Section V.i), these are a prohibition on including a separate pre-qualification stage in the tender process and a requirement to publish information on Contracts Finder in respect of contracts that have been awarded.
Under the CCR, contracting entities are free to decide on the procedure to be followed, subject to certain specified safeguards. Even lighter requirements apply in respect of light-touch services.
The Defence Regulations offer unrestricted use of the restricted and the negotiated (with prior notice) procedures. The competitive dialogue procedure is available for particularly complex contracts and the negotiated procedure (without prior advertisement) in extremely limited circumstances.
The proposed reforms will reduce these to three core procedures, which will be flexible-competitive, open and limited (with a further procedure where a state of crisis exists). The light-touch regime will remain but in an (as yet undefined) improved state.iii Amending bids
In a number of cases, the courts have upheld an authority's refusal to allow bidders to correct defects in, or omissions from, their bid.57
The PCR and UCR contain express provisions that deal with the situation where tenders, or other information or documentation submitted by bidders, appear to be incomplete or erroneous.58 Although these provisions appear to allow authorities to request information or documentation to clarify or complete information or documents at tender stage (as well as pre-qualification stage), it is clear that the authority must observe the principles of equal treatment and transparency in exercising this right. Therefore, any decision to allow the submission of such information must be taken with care and with regard to those principles.