Changes to EU Procurement Rules: Fail to Prepare; Prepare to Fail

By Chris Browne on

meetingThis blog post is the fourth in a series that has looked at some of the most significant upcoming changes to the EU Procurement Rules Directive* and discussed the possible impacts across the Public Sector.

In this concluding post, we’ll be considering the new time limits that will apply at various points in the EU procurement routes, looking at some other miscellaneous changes and reiterating the need for pre-planning and forward thinking when it comes to working with some of the changes to the new rules.

Timescale Parameters

The provisions within the new Directive include a number of relevant changes to timescales that will impact upon certain procurement processes. These are summarised in the table below:

Procedure Timescale
Open Procedure 35 days (formerly 52) for receipt of paper tenders after contract notice; 30 days if submission may be electronic
Restricted Procedure 30 days (formerly 37) for receipt of requests to participate after PIN; 30 days (formerly 40) for receipt of tenders after ITT
Competitive with Negotiation Procedure (formerly Negotiated Procedure) 30 days (formerly 37) for receipt of requests to participate after PIN; 30 days (formerly no minimum) for receipt of tenders after ITT
Competitive Dialogue Procedure 30 days (formerly 37) for receipt of requests to participate after PIN

It is clear that these new timescales have been included in an attempt to make the procedure more accessible, accelerate the procurement process and eliminate possible delays.

Whilst this is a welcome move, as always, we would urge you to ‘make haste slowly’. Basically, exercise the same level of care and judgement you always have and avoid ‘rushing in’ just because you can. Be aware of the new time limits, plan ahead and pace yourself appropriately to the size and complexity of the contract — don’t try to compress timescales just for the sake of it. Remember that bidders need time to be able to turn bids and documents round and smaller companies often don’t have the same capacity to do this as the bigger ones. Besides, if you want the best thought out and considered bids, it is definitely not worth rushing things!

It is also worth noting that for sub-central authorities, Prior Information Notices (PINs) will in future be able to be used to start competitions (subject to certain rules). In these circumstances, bidders must confirm their interest by submitting a completed ‘Invitation to Confirm Interest’ in order to engage in the competition. Again, we would advise that this option be used with care and to refrain from proceeding with undue haste especially for large or complex contracts.

Two further time limit changes to be mindful of relate to Contract Award Notices and Debrief Notices. Contract Award Notices will have to be posted on the Journal within 14 days (formerly 48) and must not be published at national level before being posted on the Journal. Debrief Notices should be issued as soon as possible after award decision or elimination of a candidate/bidder from a process/competition (as now) and responses to written award debrief requests must be within 15 days (as now).

Variant Bids

The new Directive states that PINs shall need to specify whether or not variant bids will be allowed or required. Procurement documents must specify the minimum requirements which must be met by variant bids and the award criteria must cover both the basic proposal and also any prospective variants.

This proposed change may prove challenging as it will require a greater level of forward thinking and pre-planning on the part of the awarding Authority. Whilst Authorities previously had more flexibility when it came to introducing the idea of variant bids, now they must preempt the shape the bids take and carefully consider and pre-think the award criteria to ensure it covers any possible variants.

As this new provision may be somewhat testing in practice, it is worth carefully considering whether or not you want the option of including variant bids in your procurement process.

Contract Termination

The ability for Authorities to go for termination of contract for non-performance is now enshrined within the new Directive. Authorities will be able to terminate a framework agreement during its term where the contractor/service provider has shown persistent deficiencies in the performance of any substantive requirement under the agreement.

Prior to the proposed changes, the right of the Authority to terminate contracts was not built into the EU legislation framework, meaning that there was no easy remedy for non-performance unless the Authority expressly incorporated such provisions itself. It would now appear that important lessons have been learned and this is a provision that should provide a helpful safeguard to the awarding Authority.

We thoroughly welcome this proposal and feel its inclusion is a positive one. Going forward, make use of this provision and ensure when drafting any new contract terms that contract termination is provided for and backed up by the EU Directive.

Modification of Contracts

Historically, custom and practice dictated that Authorities were not allowed to change the nature of a contract after it was entered into as to do so would effectively mean breaking the rules. If an Authority did materially alter the nature of a contract or framework they had to go back to competition to avoid any potential challenge for unfairness and/or bias against other vendors.

Now, Authorities have the option to provide for possible future changes in the contracts which they award. By being able to state that terms may need to evolve or change over the life of the contract, Authorities will now have greater flexibility and peace of mind when it comes to awarding contracts which need to remain fluid in nature.

Again, whilst this is a provision that could prove helpful, exercise care and careful consideration and allow plenty of time for pre-planning and incorporation of appropriate coverage in tender documents.

Concluding Thoughts

The proposed changes discussed within this post highlight the importance of planning early and ensuring that you exercise your usual level of best practice and due diligence at all times when preparing and running competitions.

As mentioned throughout all the posts included in this series (Post 1 focused on the impact of the new thresholds: Post 2 reviewed changes encompassing innovation partnerships, preliminary market considerations and joint procurements: Post 3 looked at the core criteria changes), the overriding aim of the proposed changes to threshold levels is to modernise the system, allow for greater ease of use and promote sound procurement practices.

We welcome any changes that improve fairness and equality throughout the procurement process and facilitate an easier system of operation. As always, be aware of the new provisions and the opportunities they offer, but exercise caution. Don’t underestimate the value of pre-planning and forward thinking, and always be mindful to outline your aims and objectives well in advance of running any competition.

If you have any further queries, please do not hesitate to contact one of the team here at Best Practice Group.

* This post has been written and published before the planned changes to the new EU Procurement Directives come into force. As such, it should be noted that all points raised are subject to ratification and possible future qualification. This post does not contain an exhaustive list and final documentation should be referred to for clarification and finer detail.

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