The selection of the procurement route to be taken will be dependent on the value and nature of the requirement. You must ensure that the procurement route you choose is consistent with the requirements of the Public Contracts Regulations 2015 before you embark on your procurement. Decisions on compliance with the Regulations may require specialist knowledge. If you are in any doubt you should seek specialist professional procurement or legal advice and guidance. Further information is available in the EU Public Procurement Guidance.
The first issue to be addressed is whether the total value of the requirement exceeds the threshold for advertising in the Official Journal of the European Union (OJEU). If your requirement does not exceed this threshold you must still consider whether the requirement needs to be advertised in order to meet a general obligation derived from EU law of demonstrating open competition, equal treatment, non discrimination and transparency.
European Court of Justice and National Caselaw
Decisions of the European Court of Justice and the national courts provide interpretation of the requirements of the EC Treaty and the EC Procurement Directives and can establish precedents which must be observed. Caselaw, by its nature, is constantly evolving and can have significant effects
Meeting Legal Obligations
The legal framework is not static, it evolves through new/amended legislation, through European Commission decisions/guidelines and through court judgments. Every institution should therefore ensure that it has appropriate arrangements in place to ensure that staff involved in procurement activity are kept up to date with developments in the legal framework and are equipped to meet their legal obligations
If your requirement exceeds the threshold for advertising in OJEU you should determine whether you may be exempt from the full application of the rules. See Determining whether the Regulations apply for further information.
Your commodity strategy will assist in determining whether you should opt for a single contract or adopt a framework agreement approach.
The following information has been produced to assist procurement officers when considering whether they should call-off from or set up a framework agreement.
Once a requirement has been identified for goods, services or works, and as part of the process of developing the appropriate procurement sourcing strategy, the procurement officer should consider if there are any existing arrangements which could meet its needs. Local procurement departments and Higher Education consortia groups will be able to assist in this process. See below links to appropriate consortia groups
There are also other wider public sector procurement organisations that offer frameworks. Your local procurement department will be able to assist in sourcing them.
If there are no existing arrangements or if the sourcing strategy demonstrates that best value for money would be delivered by a direct award, the contracting authority will have to determine whether awarding a contract or framework agreement would be more appropriate.
The Decision Matrix provides an outline of the questions to be asked and when the others documents should be consulted.
Setting up a framework agreement - early considerations
Once the framework agreement has been established the terms of the agreement should include instructions on how call-off contracts should be awarded. The contracting authority may also produce further guidance for the identified users of the framework agreement on how a call-off contract should be undertaken.
Calling off from a framework agreement - early considerations
For further considerations and an example of a typical mini-competition process consult the Guide for the use of Framework Agreements
Detailed guidance for conducting a mini-competition should be available from the owner of the framework agreement which best meets your needs however there are specific rules which are applicable to all mini-competitions.
The call off must be placed with the supplier who has submitted the lowest price or whose tender is the most economically advantageous, on the basis of the award criteria set out in the framework agreement. Unsuccessful tenderers must be notified of the outcome when a contract is awarded under a framework agreement.
Please note that you may choose to follow the standstill rules on a voluntary basis when awarding an above-threshold contract by mini-competition in order to protect yourself from an ineffective order in the event of legal challenge. Please seek advice regarding the standstill process with your Procurement department.
You may also wish to consider the associated timescales for each of the procurement procedures. There are several approaches you may take in terms of the procurement route for your requirement.
If there are potentially many suppliers who could meet your needs, you should choose a procurement route that will minimise the cost of competition for both public bodies and suppliers. Typically this would involve a pre-qualification stage, designed to reduce the number of candidates to a more manageable number (e.g. by using a questionnaire to shortlist tenderers). For above threshold requirements, the following procedures involve a pre-qualification stage: Restricted, Competitive Procedure with Negotiation, Competitive Dialogue & Innovation Partnership.
If your research has indicated that there are few suppliers that could meet your needs in the market place, you may decide that all suppliers who respond to an advertised opportunity should be sent the full invitation to tender without a separate pre-qualification stage. For above threshold requirements, this is known as the Open Procedure.
The above two processes can only be usefully adopted if you are clear about the specification/outputs you require from the tender exercise.
For above threshold requirements where you are unable to define the technical means by which you may satisfy your objectives and/or you cannot specify the legal or financial make-up of your requirement, you may adopt the Competitive Dialogue procedure. Care should be taken before selecting this route. You need firstly to ensure that you legally satisfy one of the above criteria and also be aware that this process is costly and resource intensive for both buyer and supplier and is likely to result in a significant increase in procurement timescales.
There are two other procedures, negotiated with a call for competition and negotiated without a call for competition which may be used in very limited and exceptional circumstances. You are advised to seek professional procurement or legal advice or guidance prior to adopting either process.
You may wish to consider the potential for an eAuction when you are able to identify your specification in detail and where there is a heavy emphasis on price being the determining factor. eAuctions are normally best used where there is a surplus of supply in the marketplace and the buyer holds the power in the relationship.
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