Voluntary transparency notices

Spotlight iStock 000003933485XSmall 146x219Is a voluntary transparency notice published in the OJEU? How in practice is this distinguished from the OJEU notices that are published in advance of a procurement process? The LexisPSL Public Law team report.

This Q&A produced by the focusses on the rules and procedure concerning voluntary transparency notices under the Public Contracts Regulations 2015, SI 2015/102.

For public contracts subject to the Public Contracts Regulations 2015, SI 2015/102, the requirements for publishing contract notices in the Official Journal of the European Union (OJEU) in accordance with the rules of procedure are set out in the Public Contracts Regulations 2015, SI 2015/102, Pt 2 (see in particular regs 48 to 52). A voluntary transparency notice (also known as a ‘voluntary ex ante transparency notice’ or ‘VEAT notice’) is used in limited circumstances arising under the Public Contracts Regulations 2015, SI 2015/102, Pt 3.

A voluntary transparency notice may be published by a contracting authority where a contract has been awarded without prior publication of a contract notice in accordance with the Public Contracts Regulations 2015, SI 2015/102, Pt 2 (ie a direct award). A contracting authority may opt to publish a voluntary transparency notice in these circumstances in order to resist challenge on grounds of ineffectiveness under the Public Contracts Regulations 2015, SI 2015/102, reg 99(2).

The Public Contracts Regulations 2015, SI 2015/102, reg 99(3) provides that the above ground for ineffectiveness will not apply if the contracting authority:

  • considers the contract award (without prior publication of a contract notice) to be permitted by the Public Contracts Regulations 2015, SI 2015/102, Pt 2
  • publishes a voluntary transparency notice in the OJEU indicating its intention to enter into the contract, and
  • observes a standstill period of at least ten days beginning with the day after the date the voluntary transparency notice was published in the OJEU

Under the Public Contracts Regulations 2015, SI 2015/102, reg 99(4), a voluntary transparency notice must contain:

  • the name and contact details of the contracting authority
  • a description of the object of the contract
  • a justification of the decision of the contracting authority to award the contract without prior publication of a contract notice
  • the name and contact details of the economic operator to be awarded the contract, and
  • where appropriate, any other information which the contracting authority considers useful

Commission Implementing Regulation (EU) 2015/1986 of 11 November 2015 established standard forms for the publication of notices in the field of public procurement. For further information, see News Analysis: Standard forms for the publication of notices in the field of public procurement. See also: Procurement Policy Note 17/15: Availability of Standard EU Forms and Notices for Public Procurement. The standard forms are available on SIMAP.

There is a standard form voluntary transparency notice set out in Annex XII to Commission Implementing Regulation (EU) 2015/1986. The form provides that the following sections of the notice must be completed as a minimum (the remaining sections to be used to provide information deemed useful by the submitting authority):

  • Section I: 1 Name, addresses and contact point(s)
  • Section II: 1.1 Title attributed to the contract
  • Section II: 1.2 Type of contract and location of works, place of delivery or of performance
  • Section II: 1.4 Short description of the contract or purchase(s)
  • Section II: 1.5 Common procurement vocabulary (CPV) code
  • Section II: V.3 Name and address of economic operator in favour of whom the contract award decision has been taken
  • Annex D1, D2 or D3 as appropriate (Justification for the award of the contract without prior publication of a contract notice in the OJEU)

The requirement to use this format is formally incorporated into the Public Contracts Regulations 2015, SI 2015/102, reg 99(4) as amended by the Public Procurement (Amendments, Repeals and Revocations) Regulations 2016, SI 2016/275, which come into force on 18 April 2016 (see the Public Procurement (Amendments, Repeals and Revocations) Regulations 2016, SI 2016/275, Sch 2, Pt 1, para 19).

Ministero dell'Interno v Fastweb SpA C-19/13

In practice, use and preparation of a voluntary transparency notice requires careful consideration of the risks and circumstances. For further reading on this subject, you may wish to read the case Ministero dell'Interno v Fastweb SpA C-19/13, in which the European Court of Justice considered the correct application of voluntary transparency notices. You may also find our Practice Note: Transparency in procurement processes useful background reading.

This Q&A was originally published in LexisPSL Public Law. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

Previous articles from LexisPSL Public Law include:

Reservation of public contracts

Introduction to concession contracts procurement

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