Following a series of seminars on the new public procurement rules, the Scottish Government has published answers to a number of FAQs, one of which relates to the vexed question as to the duties of contracting authorities (and utilities) to make all procurement documents available upfront to tenderers when publishing OJEU contract notices.
Regulation 54(1) of the new Public Contracts (Scotland) Regulations 2015 provides that “a contracting authority must offer on the internet unrestricted and full direct access free of charge to the procurement documents from the date of publication of a notice”. The Regulations define ‘procurement documents’ very widely meaning that the literal interpretation of this provision is that all documents related to the procurement, including technical specifications, terms and conditions and tender documents to be used at subsequent stages must be available at the commencement of a procurement.
The impracticality of having all procurement documents ready at the start of a procurement, particularly when using the competitive dialogue or negotiated procedures (where the main purposes of using such procedures is to develop some of these documents through the procurement process) has caused concern among contracting authorities and utilities and been the subject of much debate. Before now, the Crown Commercial Service had published helpful guidance which suggests that the meaning of ‘procurement documents’ adapts throughout the procurement process allowing this issue to be avoided. However, whilst helpful, this guidance does not apply in Scotland.
Thankfully, the Scottish Government has now shed some welcome light, and its guidance states that the term ‘procurement documents’ should be interpreted in light of the Regulations’ intention which is to enable potential bidders to assess the contract opportunity and decide whether to participate in the tender.
The guidance contains specific examples:
- In the case of a competitive dialogue procedure, the invitation to submit a final tender is a procurement document but can only be finalised in the course of the actual dialogue, and does not therefore need to be made available at the same time as the contract notice;
- In the context of restricted procedures, the intention appears to be that ‘procurement documents’ (including the invitation to tender) are made available in electronic form at the same time as they are issued to participants in hard copies;
- Only in the case of an open procedure would the authority be required to make the invitation to tender available from the outset of the procurement (i.e. when the contract notice is published).
This FAQ response from the Scottish Government will help provide further comfort to contracting authorities and utilities in Scotland. The reasoning should apply equally to interpreting the equivalent provision under The Utilities Contracts (Scotland) Regulations 2016 and The Concession Contracts (Scotland) Regulations 2016.