The European Commission has announced that it is prepared to accept more widespread use of the accelerated restricted procedure to procure 'major public projects' in 2009 and 2010 due to the current economic climate. Until now, the procedure has only been available in limited circumstances.
According to Wragge & Co's procurement and antitrust associate, Andrew Maxwell, "The Commission's statement may help swing the balance away from the competitive dialogue in favour of the accelerated restricted procedure, particularly if contracting authorities can ensure they are able to move quickly and draw up a specification and contract that will not require dialogue or negotiation with bidders."
The normal restricted procedure time limits generally require a minimum of 80 to 87 calendar days between despatch of the contract advertisement (OJEU notice) to the Official Journal of the European Union and contract signature. Under Regulations 16 and 32 of the Public Contracts Regulations 2006, contracting authorities must generally allow:
- at least 37 days from despatch of OJEU notice for receipt of Pre-Qualification Questionnaire (PQQ) responses (reduced to 30 days where the OJEU notice is despatched electronically by means of an approved e-sender);
- at least 40 days from despatch of Invitations to Tender (ITT) for receipt of bids (this can be reduced by five or more days in certain limited circumstances); and
- a standstill period of at least 10 days between the decision to award the contract and contract signature.
Regulation 16 allows contracting authorities to reduce this normal minimum restricted procedure timetable from 87 (or 80) calendar days, to 35 (or even 30) calendar days by using the 'accelerated restricted procedure'. Having opted in the OJEU notice to use this accelerated procedure, and provided appropriate justification for its use on the grounds of urgency, a procuring body must allow:
- at least 15 days from despatch of OJEU notice for receipt of PQQ responses (reduced to 10 days where the OJEU notice is despatched electronically);
- at least 10 days from despatch of ITT for receipt of bids; and
- a standstill period of at least 10 days prior to contract signature.
While the accelerated procedure was previously available where compliance with the minimum time limits for the restricted procedure was 'rendered impractical for reasons of urgency', the concept of 'urgency' has previously been interpreted quite restrictively. Andrew Maxwell notes, "The impact of the Commission's announcement is that there will be a presumption of urgency applying to 'all major public projects' in 2009 and 2010."
The scope of the Commission's statement is limited to major public projects. Yet the Commission provides no guidance on the definition of 'major public projects'. Andrew Maxwell says, "Large and complex investment projects still require a procuring body to embark on a more lengthy competitive dialogue procedure. Contracting authorities generally need some element of dialogue or negotiation with bidders to optimise the specification and contract for such projects. Clearly that would not be available in procurements carried out under the restricted procedure, and even less so under the accelerated restricted procedure."
He adds, "Since the Commission makes no proposal to expedite the competitive dialogue process during the downturn, however, contracting authorities should examine carefully, on a project-by-project basis, whether the accelerated restricted procedure might be a suitable fast-track alternative."
Andrew Maxwell notes, "As an alternative to dialogue for more complex procurements, authorities should consider talking to the market before they advertise and then using the restricted procedure. This can be an effective way of assessing what the market can offer. It should not present procurement law issues provided it is done fairly and transparently."