Julie Lau, Clare Mendelle and Beth Edwards outline the new regime for publishing procurement notices post-Brexit
On 24th June, the Government issued PPN 07/21 (the “PPN”) relating to the publication of notices on Contracts Finder. The PPN is accompanied by the newly published “Guidance on the transparency requirements for publishing on Contracts Finder” (the “Guidance”) which must be applied by contracting authorities with immediate effect.
Part 1: Guidance applicable to all In-Scope Organisations
Part 1 of the Guidance replaces that previously published under PPN 07/16 and applies to all contracting authorities who must publish public sector opportunities on Contracts Finder under the Public Contracts Regulations 2015 (“PCR 2015”), excluding those listed in section 6 of Part 1 of the Guidance.
The requirements, which mostly stem from the PCR 2015, include:
- Advertising most above-threshold contract opportunities on both Find-a-Tender Service (“FTS”) and Contracts Finder.
- Publishing below-threshold public sector opportunities and contract award notices on Contracts Finder where they are worth at least £10,000 net of VAT (central government authorities), or at least £25,000 net of VAT (sub-central authorities and NHS Trusts).
- Publishing contract opportunities on Contracts Finder within 24 hours of being advertised elsewhere, e.g. on FTS or other platforms.
- The provision of specified information relating to procurement opportunities and awarded contracts. Further detail of these minimum publication requirements can be found in section 5 of Part 1 of the Guidance.
- Publishing contract award notices on Contracts Finder within “a reasonable time” (as required within the PCR 2015), defined by the Guidance as follows:
- For central government authorities, 30 calendar days after the contract award date.
- For sub-central authorities, 90 calendar days after the contract award date.
- Part 2: Additional policy guidance for central government authorities
- Part 2 replaces the previous guidance “Publication of Central Government Tenders and Contracts” and applies exclusively to central government authorities as defined in Schedule 1 PCR 2015, excluding NHS Trusts.
The requirements include:
- Providing unrestricted, free, and direct access to the tender documentation at the opportunity stage.
- Publishing contract documents in full within 30 calendar days of award.
- Following the Transparency Principles from PPN 01/17 (the “Principles”) (which were also updated on 24th June) by being proactive and releasing information during the life of the contract.
- Considering where information should be exempted from disclosure or redacted under the Freedom of Information Act 2000 (“FOIA 2000”) and using exemptions or redactions appropriately.
- Resolving extenuating circumstances which prevent the Guidelines from being followed as soon as reasonably practicable.
The Guidance also contains a number of annexes which provide helpful information:
- Annex One – a summary of the requirements to publish on Contracts Finder;
- Annex Two – FAQs on central government contracts; and
- Annex Three – a flowchart on calculating timescales.
What has changed?
Notable changes brought about by the Guidance include the following:
- References to OJEU and TED have been replaced by references to FTS.
- “Contract award” for these purposes is defined as the date on which the contract is signed by the last contracting party, with timescales to publish running from the day after this date.
- “Central Government” has been redefined so it aligns with the definition in Schedule 1 of the PCR 2015.
- Executive Agencies and bodies for which central government authorities are responsible which are not explicitly listed in Schedule 1 of the PCR 2015 may be required by their relevant departments to follow Part 2, and central government authorities should encourage arms-length bodies and non-departmental public bodies to adopt the Guidance on a voluntary basis.
- For consistency, details of contracts awarded by central government authorities must be published within 30 calendar days, instead of 20 days following the end of the ten-day standstill period (where applicable).
- Clarification that if a deadline for publication falls on a non-working day, parties have until the end of the next working day to publish the relevant information.
Commentary
The Cabinet Office states in the PPN that the purpose of issuing the Guidance is “to reflect changes following the end of the transition period and to provide further clarity to enable In-Scope Organisations to meet their transparency obligations.”
Transparency of procurement opportunities and visibility of awarded contracts are a key feature of the Green Paper “Transforming Public Procurement”. Meanwhile, the case of Good Law Project and Others v Secretary of State for Health and Social Care provides a recent example of contracting authorities continuing to fall foul of transparency requirements. Contracting authorities should therefore familiarise themselves with PPN 07/21, as it consolidates and clarifies existing rules, while also indicating the Government’s direction of travel in relation to transparency under the upcoming reformed procurement regime.
Julie Lau is a legal director, Clare Mendelle a professional support lawyer and Beth Edwards a paralegal at Sharpe Pritchard LLP.
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