European Union Legislation and Procurement Reform (Scotland) Act 2014: reference pack

10. Publication and Transparency

Prior Information Notices ( PINs)

While PINs can still be used for early market engagement and to reduce procedural time limits, the Public Contracts (Scotland) Regulations 2015 now allow sub-central public bodies to use PINs as a call for competition in restricted procedures or competitive procedures with negotiation. A PIN can also be used as a call for competition in the Procurement (Scotland) Regulations 2016. The notice must:

• clearly state the supplies, works or services that will be the subject of the contract to be awarded;
• indicate that the contract will be awarded by restricted procedure or competitive procedure with negotiation (for EU Regulated procurements) without further publication of a call for competition and invites interested economic operators to express their interest;
• contain all the information that is necessary for a potential supplier to express their interest and understand the procurement as set out in Annex V (Part B) (Sections I and II) of the Public Contracts Directive 2014; and
• be sent for publication between 35 days and 12 months before asking those suppliers (who have noted an interest) to confirm their continuing interest.

PINs used as a call for competition shall not be published on a buyer profile.

Publication at national level must not be made prior to its publication in the OJEU, and must not contain any information over and above that contained within the OJEU advert. Public bodies should receive a receipt from the EU Publications Office once they have sent their notice for publication. Public bodies can publish at a national level once, either, they receive confirmation from OJEU that their notice has been published or
48 hours have elapsed from the notification of the receipt of their notice.

The period covered by the PIN shall be a maximum of 12 months from the date the notice is transmitted for publication. However, in the case of public contracts for social and other specific services, the PIN may cover a period which is longer than 12 months.

Publication of Contract Award Notices and Contract Awards

In addition to the existing OJEU publication requirements, the Procurement Reform (Scotland) Act 2014 require all public bodies who are conducting a regulated procurement to publicise their intention to seek offers (contract notice) and the award of a contract or framework agreement (award notice) on Public Contracts Scotland ( PCS) ^[15] .

While public bodies must publish a contract award notice when they establish a framework agreement as well as for the results of call-off contracts deriving from them, they do not have to publicise the fact that they are running their call off on PCS. Call offs do not have to be published in OJEU, but above Reform Act threshold call off awards must be published in PCS.

Public Contracts Scotland

• The PCS Info Centre ^[16] contains further information on how public bodies can meet their publication obligations.
• PCS also meets the minimum requirements for electronic means of communication.
• All public bodies are provided with the opportunity to publicly host their Contract Register on PCS.

Contract Award Notices

The new contract award standard form introduced by the European Commission requires public bodies to provide information over and above that previously required when completing a contract award notice.

The legislation provides the full details of what must be contained in a contract award notice. One of the ways in which the new contract award notice has been updated is in the new “Information about tenders” section which requires information about the:

• Number of tenders received;
• Number of tenders received from SMEs;
• Number of tenders received from tenderers from other EU Member States;
• Number of tenders received from tenderers from non- EU Member States;
• Number of tenders received by electronic means; and
• Whether or not the contract has been awarded to a group of economic operators.
• Public bodies should give early consideration as to how they will gather this information.

The time limit for publication of a contract award notice (on the results of the procurement procedure) has been reduced from 48 calendar days down to 30 calendar days after the award of a contract, the conclusion of a framework agreement or the award of a contract based on a dynamic purchasing system. This 30 day time limit for publication of contract award notices also applies to contracts awarded under the Reform Act Regulations.

Certain information on the contract award or the conclusion of the framework agreement may be withheld from publication where its release would impede law enforcement or otherwise be contrary to the public interest, would harm the legitimate commercial interests of a particular economic operator, public or private, or might prejudice fair competition between economic operators.

Although this is very similar to the wording in the 2004 public procurement Directive, the inclusion of the phrase “a particular” before economic operator, makes it much clearer that public bodies should consider whether the release of a specific economic operator’s information would have any of the negative effects that are listed in this paragraph.

Publication at National Level

Previously as soon as you had proof that a notice had been dispatched to OJEU you could publish the same information at a national level. Under the new regime, you are required to wait ,either, until you have confirmation that the notice has been published in OJEU or for 48 hours - whichever is the soonest. Such confirmation shall constitute proof of publication. Public Contracts Scotland will automatically publish a notice (and the public body will be notified) if a receipt has been received from the EU Publications Office, but the notice has not been published within 48 hours.

• For OJEU contracts, the publication of PINs, contract notices and contract award notices at national level is prohibited prior to their publication in the OJEU.
• The OJEU publications office will normally provide public bodies with confirmation of receipt of the notice and of publication of the information sent indicating the date of that publication.
• Following this publication at European level, further publication may take place at national level. However, where a public body has received confirmation of receipt of the notice but not publication, they may publish the information at national level once 48 hours have elapsed from their confirmation of the receipt of the notice. Notices published at national level shall not contain information other than that contained in the notices dispatched to OJEU.

Commerce – Further Information

Systems provided by Scottish Government for public procurement purposes are reviewed and updated to ensure they are compliant with the current legislation.

Public Contracts Scotland

For further information on updates to PCS, please click on the following link -
Public Contracts Scotland

PCS-Tender

For further information on updates to PCS-T, please click on the following link -
Public Contracts Scotland- Tender

Procurement Journey and Supplier Journey

Announcements to updates on the Procurement Journey will be made through the pop-up box, the updates section and emails, if you have subscribed to “Notify me of Changes”.

• https://www.procurementjourney.scot/
• https://www.procurementjourney.scot/help-advice
• https://www.supplierjourney.scot/
  

Supplier Development Programme

This organisation provides local businesses with free access to procurement advice and training, including training on the ESPD. Further information is available at https://www.sdpscotland.co.uk/.

Electronic Communication and Information Exchange

18 ^th April 2017

All communication must be by electronic means for EU Regime procurements commenced by Central Purchasing Bodies from this date.

18 ^th April 2018

European Single Procurement Document must be published exclusively in electronic format for all EU Regime procurements from this date.

18 ^th October 2018

All communication must be by electronic means for EU Regime procurements commenced by all public bodies from this date.

Public bodies must obtain the relevant information directly by accessing a national database.

Public bodies must require the certificates or forms of documentary evidence that are covered by e-Certis

Rules Applicable to Communication

The tools and devices to be used for this electronic communication, as well as their technical characteristics, must be non-discriminatory, generally available and interoperable with the ICT products in general use and must not restrict access to the procurement procedure.

Public bodies may, where necessary, require the use of tools and devices which are not generally available, provided that they offer alternative means of access.

Alternative means:

• Which offer unrestricted and full direct access free of charge by electronic means to those tools and devices; specify the internet address they are available from and ensure they are available from the outset of the procurement.
• Which ensure that tenderers having no access to tools and devices or the possibility of obtaining them within the relevant time limits (provided this is not the tenderers fault) may access the procurement procedure free of charge online.
• Which supports an alternative channel for electronic submission of tenders.

Public bodies are allowed to speak to potential suppliers as long as this communication does not interfere with the essential elements of a procurement procedure and this interaction is documented to a sufficient degree, and by appropriate means (such as written records or summaries of the main elements of the communication).

For avoidance of doubt, the “essential elements” of a procurement procedure include the procurement documents, requests for participation (applications in the Concessions Contracts (Scotland) Regulations 2016), confirmations of interest and tenders.

Confidentiality

It is well established that unless otherwise provided for in the Regulations (e.g. Contract Award Notices, Informing candidates and tenderers or under the Freedom of Information (Scotland) Act 2002) public bodies must not disclose any information forwarded to them by bidders who have designated it as confidential.

Public bodies are able to impose requirements on bidders to protect confidential information that public bodies make available throughout the procurement procedure.

Charges for Participation in Procurement Exercises

Public bodies must not charge a fee for participation in their procurement exercises.

This includes a fee to provide any document required to participate in that process.

QUIZ

Question 17

Prior Information Notices ( PIN) may be used as a call for competition by
sub-central public bodies in which of the following procedures?
(select all the apply):

a) Open procedure

b) Restricted procedure

c) Competitive procedure with negotiation

d) Competitive dialogue

e) Innovation partnership

f) Negotiated procedure without a call for competition.

Question 18

Under the Procurement Reform (Scotland) Act 2014 which of the following must be publicised on Public Contracts Scotland ( PCS)?
(select all the apply):

a) Regulated procurement- contract notices

b) Regulated procurements- contract award notices

c) Regulated procurements- framework award notices

d) Regulated procurements- results of calls offs from frameworks

e) Regulated procurements- notice of intention to run call offs from frameworks.