OJEU notice guidance and key points to remember
It is important to complete OJEU notices correctly. This is the method by which suppliers are notified of opportunities. Omitting or changing details from the notice could lead to potential challenge at a later date. Particular attention should be paid to the following areas;
Section I.2 (PCS: Purchasing on behalf of others)
If you are contracting on behalf of other contracting authorities as well as yourself, tick ‘yes’ and state who you are purchasing on behalf of.
Any text that you type in this box will appear under Section VI.3 of the Contract Notice.
II.1.2 (PCS: Type of Contract)
For mixed goods and services contracts, assess whether the value attributable to the services exceeds that attributable to the goods – or vice versa. The higher value determines the category. Services related to the siting or installation of goods is treated as consideration attributable to the goods – and not attributable to separate services.
For mixed services/works contracts, it is appropriate to consider a value test or a main purpose test but if the works activities are only incidental to the principal object of the contract then it must be treated as services contract. If a mixed works/services contract would exceed the services threshold but not the works threshold then careful consideration must be given to the categorisation – given the OJEU/non-OJEU implications of this. There is no regulatory guidance on how to deal with a mixed supply/works contract but a main purpose or relative value assessment will be appropriate. Again, if the categorisation affects the thresholds, careful consideration must be given.
II.1.6 (PCS: CPV Coding)
Select the main object code that covers the main/bulk of the commodity being procured. Use the additional objects fields for CPV codes for any items which are not covered by the main object code. Note it is important to include CPV codes for all aspects of the procurement.
II.1.7 (PCS: Covered by GPA)
The application of the GPA is complex. In general, and ignoring some of the peculiarities:
All supplies purchases are subject to the GPA.
The services listed in the table at the end of this note are subject to the GPA. Other services are not subject to the GPA.
Most works procurements are subject to the GPA – although again there is a list of coverage (which would run to 4 pages or so, and is not included in this note).
If there is doubt in any particular case, specialist procurement or legal advice could be taken. If this is not available then it is suggested as a default position that the ‘Yes’ box is ticked where there is uncertainty.
II.1.9 (PCS: Contract Variants)
Variant* bids are usually not accepted so ‘no’ should be ticked. Where the option of variant bids is deemed acceptable, tick ‘yes’ and ensure the ITT contains text stating the rules of how variant bids will be handled e.g. a variant bid must be accompanied by a compliant bid and both will be evaluated using the published criteria. NB: If variants are to be accepted then the invitation to tender document must specify the minimum requirements which a variant bid must meet. In other words, in most cases, there will be the specifications for a compliant bid and a minimum and consistent set of specifications for a variant bid.
Variants can only be considered where the criterion is MEAT and not lowest price.
* Allowing variants means allowing tenders which contain any variation to the requirements specified. Although in most cases the variants will be around the technical requirements, the rules on variants do apply beyond the technical solution, and so include, for example, allowing a pricing proposal other than on the basis specified in the invitation document.
If, however, it is a requirement in the tender documentation that one pricing model is completed and that bidders may or may not complete a second pricing model which is presented then this wouldn’t be classified as allowing a variant tender. There would be no variation from what was being asked. If, in contrast, the pricing model (or an alternative pricing model) was left for the market to develop then that would be classified as allowing a variant. Accordingly, any minimum constraints which such a pricing model would have to satisfy would have to be set out.
II.2.1 (PCS: Total Quantity or Scope)
The purpose of section II.2.1 is to indicate the scale of the opportunity. As a minimum insert details regarding the core aspects of the requirement, quantity and scope etc. This field is often used by suppliers to decide if they want to tender so deters speculative tenders.
The valuation should include all lots and all optional extensions.
IV.1.2 (PCS: Limitations on the number of operators.)
The minimum number of suppliers is:
Restricted = 5
Negotiated and Competitive Dialogue = 3
IV.2.1 (PCS: Award Criteria)
Select either “lowest price”, “criteria stated in the specification, ITT…” or “the criteria stated below”.
Suggest ticking ‘criteria stated in the specification, ITT…’ as the default position. If this is ticked, the rest of the section should be left blank.
For the Negotiated, Open and Restricted procedures, any of the above can apply but for the Competitive Dialogue procedure, the contract award may only be on the basis of the most economically advantageous tender.
NB: If the criteria are specified in the Contract Notice they must be complete and final and more than just the “overarching” criteria and weightings – they must include the award criteria, sub-criteria and weightings. No new elements can be introduced after publication of the award criteria to ensure compliance with the EC Treaty requirement for transparency.
III.2.1 III.2.2 III.2.3 (PCS: Personal Situation of Economic Operators, Economic and Financial Capacity, Technical and Financial Capacity)
The regulations require that the information is requested in the Contract Notice or in the invitation to tender, but it is common practice for the PQQ to be referred to in the Contract Notice; this is not 100% compliant but where it is decided that the PQQ will be referred to, suggest disregarding all the check boxes and in the ‘other conditions’ box, text is usually added ‘details are provided in the Pre Qualification Questionnaire’ unless minimum standards are to be applied which must be detailed in this field and must be related to and proportionate to the subject matter of the Contract/Framework Agreement.
VI.4 VI.4.1 VI.4.2 VI.4.3 (PCS: Appeals Procedure)
Contract Notice section II.1.7
Application of GPA to services contracts/frameworks
| Subject | Reference in UN Central Product Classification |
| Maintenance and repair services | 6112, 6122, 633, 886 |
| Land transport services, including armoured car services, and courier services, except transport of mail | 712 (except 71235), 7512, 87304 |
| Air transport services of passengers and freight, except transport of mail | 73 (except 7321) |
| Transport of mail by land, except rail, and by air | 71235, 7321 |
| Telecommunications services | 752* (except 7524, 7525, 7526) |
| Financial services
(a) Insurance services (b) Banking and investment services** |
Ex 81
812, 814 |
| Computer and related services | 84 |
| Accounting, auditing and bookkeeping services | 862 |
| Market research and public opinion polling services | 864 |
| Management consulting services and related services | 865, 866*** |
| Architectural services; engineering services and integrated engineering services; urban planning and landscape architectural services; related scientific and technical consulting services; technical testing and analysis services | 867 |
| Advertising services | 871 |
| Building-cleaning services and property management services | 874, 82201-82206 |
| Publishing and printing services on a fee or contract basis | 88442 |
| Sewage and refuse disposal; sanitation and similar services | 94 |
* except voice telephony, telex, radiotelephony, paging and satellite services
** except contracts for financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments, and central bank services.
*** except arbitration and conciliation services