What is public procurement law?
Public procurement law governs how the public sector funds are used to buy goods and services or works. At the time of writing before Brexit is completed in 2019 it is imposed by the European Union.
The aim is to have an open market across Europe to give bidders the same chance of winning contracts.
It dates back to the Treaty of Rome (1958) and is known as TFEU
Most contracts are caught by the public procurement law legislation- Public Regulations 2015 or Utilities Regulations, these might be contracts for goods and services. There are some exceptions such as land or buildings/ Real Estate, employment contracts (employees) Legal cases where the courts are involved, loans and financial services.
Other contracts that are exempt might include contracts between public entities, R&D contracts unless the R&D is for the exclusive benefit of the organisation, or is 100% funded by the organisation. There may be some state aid implications.
The Thresholds change from time to time
When choosing a route to market there are different procedures to choose from:
Restricted Procedure: Two-stage procurement exercise, Selection Stage (SQ/PQQ) with a 30-day window. The organisation should have a minimum threshold if the suppliers meet the criteria they progress to the next stage ( aim to take 5 suppliers through) to the next stage.
ITT award stage. 25-day minimum window if using email or tender portal. No negotiation is permitted.
Open procedure: single stage process, all suppliers are invited to submit bids where the PQQ and the ITT are combined.
Negotiated Procedure/Competitive Dialogue: To be used for complex or innovative requirements, two-stage procurement exercise. Negotiation permitted. Dialogue permitted. Phased elimination of tenders an option. More resource intensive and legal support likely to be required.
Innovation Partnership: Not used very often, useful for purchasing R&D. Research and development services may take place with multiple contractors with phased elimination.
To start an OJEU process the Contracting Authority can issue a PIN notice or post a Contract Notice.