The UK Government’s Crown Commercial Service has issued Procurement Policy Note 07/16 that at best is unclear and at worst wrong. The guidance states that all sub-central public contracts valued over £25,000 should be advertised in Contracts Finder, not only before the contract is tendered, but also when it is awarded. Guess what? Although they may like that to be the case, they’re not only misleading, they’re also wrong.
There’s even a disclaimer that the PPN should be read alongside “Guidance on transparency requirements for publishing on Contracts Finder,” where readers who access the link will find just how wrong the PPN is.
The obligation in the Public Contracts Regulations 2015 to advertise prospective contracts on Contracts Finder only applies where a public body advertises a contract award opportunity, and the regulation then goes into some vague detail about what constitutes advertising. It does not apply where an opportunity is not “advertised”
For example, an opportunity is not advertised where it makes the opportunity available only to particular economic operators, for example companies appointed to a framework. Neither is it advertised (and this is where the regulation gets vague) when companies have been selected via an “ad hoc” list. The complication comes when deciding how ‘ad hoc’ is defined and how to set it up. Surely the public body would advertise openly, thereby requiring an advert in Contracts Finder. Or does the Head of Procurement use other methods to set up this ‘ad hoc’ list?
There are two specific circumstances where a contracting authority is required to advertise a below EU threshold contract publicly:
- “cross border” interest or
- EU based or other grant funded contracts where the conditions require public advertising.
Beyond this, CCS’s further guidance puts the onus on a Contracting Authority to interpret the regulation. “Where a contracting authority is satisfied it is lawful not to advertise an opportunity and chooses not to advertise the opportunity at all, the requirement to advertise on Contracts Finder does not apply to that contract.”
Well that’s not frightening at all is it, except the Procurement Officer is petrified about his/her level of legal satisfaction. What’s more, the CCS explain that “This may be the case where, for example, a contracting authority has a standing order stating that advertising is not required for contracts with a value below a certain amount, and (note, not ‘or’ ) there is no legal requirement to advertise the contract.” So we go back to the procurement officer’s level of confidence in his legal satisfaction.
The publication of award notices in Contracts Finder is an even more complicated issue. Regulation 112.—(1) states that “Where a public contract is awarded, the contracting authority shall, within a reasonable time, publish on Contracts Finder” There are no “if’s or but’s”, any sub-central Contracting Authority awarding a public contract above £25,000 must publish that award, whether the contract opportunity was advertised or not.
So, to restate my original question, is this PPN 07/16 clear and unequivocal helpful advice, or is it an attempt to create the illusion of an obligation, where none exists?
(Note: The facetious comments in this post are mine entirely and have no connection with the thoughts or opinions of Tim Oakley, Head of Consultancy, LHC)
Tim Oakley 
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