A new Procurement Policy Notice has been published proving further guidance for public bodies, including NHS Trusts, on the use of Contracts Finder.
On 18 July 2016, Crown Commercial Service published a Procurement Policy Notice (PPN) reminding public bodies to publish procurement opportunities on the Contracts Finder portal. Contracts Finder was re-launched in February 2015 to be a single, searchable portal for public sector tenders.
Opportunities to be published on Contracts Finder
This PPN applies to:
- Central Government Agencies
- Non-Departmental Public Bodies
- Wider public sector, local authorities and NHS Trusts.
This PPN does not apply to:
- Procurement of healthcare services (within the meaning of the NHS (Procurement, Patient Choice and Competition Regulations))
- contracts procured by maintained schools, academies and sixth form colleges
- Organisations with devolved functions in Wales, Scotland and Northern Ireland.
When the value of a contract is less than the financial thresholds in the Public Contracts Regulations 2015, a contracting authority must still award it in accordance with EU Treaty Principles, to ensure fairness and transparency therefore advertising the contract opportunity may still be appropriate.
If a contract is advertised, the opportunity must be published on Contracts Finder instead of, or in addition to, other portals or websites whenever the value of the contract is greater than:
- £10,000 – for central government authorities
- £25,000 – for sub-central authorities and NHS Trusts.
Information to be published on Contracts Finder
Within 24 hours of a contract opportunity first being advertised contracting authorities must (as a minimum) publish on Contracts Finder:
- the time by which any interested supplier must respond if it wishes to be considered
- how and to whom an interested supplier is to respond (with appropriate contact details)
- any other parameters for participating in the procurement, (eg suitability requirements or explanatory information).
The Contracts Finder system does not currently have an automatic link to the EU portal Tenders Electronic Daily (TED). Any notice that is published on TED must also appear on Contracts Finder within 24 hours of the time when the contracting authority becomes entitled to publish the notice at national level. The information on TED, Contracts Finder and any other procurement platform should be consistent as to the name/title/description of the opportunity.
Publishing awarded contracts information on Contracts Finder
Details of all contracts awarded that exceed the publication thresholds (£10,000 or £25,000, as noted above) should be published. This includes those awarded following call-offs from framework agreements and contracts that may not have been openly advertised.
Contracting authorities are responsible for publishing the details of awarded contracts and must publish the following details (in a reasonable time):
- who has won the contract
- the contract value
- whether the winning supplier is a small business or voluntary organisation or charity for procurements below the threshold.
Consequences of failing to publish
It is uncertain whether a formal procurement challenge could be brought for failing to advertise the opportunity or the award on Contracts Finder – this has not been tested by the courts, but our view is that it would be unlikely to succeed. In addition, the value of a sub-threshold contract is less likely to be sufficient to make a procurement challenge worthwhile for an unsuccessful bidder.
Nevertheless, the timing of this PPN suggests that there is a desire to improve usage of the Contracts Finder as part of the wider drive for transparency in government. Guidance was already available – the new guidance acts more as a reminder.
There is nothing in the guidance that adds to the law that has been in force since the Public Contracts Regulations 2015 came into force. Failure to comply may carry a reputational risk for government departments, NHS Trusts and other authorities who wish to take a robust approach to procurement compliance.