Procurement in a nutshell - Legal requirement to publish on Contracts Finder

Click here for PPN 07/16.

What is Contracts Finder?

Contracts Finder, first launched in 2011, is an online government portal which allows suppliers to search for information about contracts worth over £10,000 (excluding VAT). The Public Contracts Regulations (PCR) 2015 introduced legal requirements for advertising on Contracts Finder. The intention was to provide small and medium sized enterprises as well as voluntary, community and social enterprises with easier access to public contract opportunities and improve transparency.

Formerly the requirement to publish on Contracts Finder did not include contracts for which OJEU notices were required; the scope of the rules has now been extended to include such contracts.

Who do the rules apply to?

PPN 07/16 applies to:

• central government agencies;
• non-departmental public bodies; and
• the wider public sector, local authorities and NHS Trusts.

However it does not apply to the following:

• maintained schools, academies or sixth form college corporations;
• procurement of healthcare services within the meaning and scope of the  National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations; and
• CAs with devolved functions in Wales, Scotland and Northern Ireland.

What are the thresholds?

The thresholds provided by the PCR 2015 (and applying to PPN 07/16) are:

• £10,000 for central government authorities, and
• £25,000 for sub-central authorities and NHS Trusts.

Contracts above these thresholds must be published in Contracts Finder.

What information must be published?

1. Opportunities

Where a CA advertises an opportunity which meets the above thresholds, within 24 hours, as a minimum, it must publish on Contracts Finder:

• the time by which any interested supplier must respond if it wishes to be considered;
• how and to whom an interested supplier must respond if it wishes to be considered, along with appropriate contact details; and
• any other requirements for participating in the procurement, such as suitability requirements or explanatory information.

The policy note stipulates that CAs should ensure that there is consistency in the key information recorded across different advertising platform for the same opportunities.

Contracts which are above the EU public procurement threshold (i.e. £4,104,394 for works contracts and £106,047 for central government and £164,176 for sub-central authorities for supplies/services contracts), for which a contract notice has been sent to the EU Publications Office, must be published on Contracts Finder within 24 hours of the time when the CA becomes entitled to publish the notice at national level.

It has been observed that while wording of PPN 07/16 might suggest that CAs must follow the requirements for all opportunities over the thresholds, earlier guidance from the Crown Commercial Service indicates that this is not the case. The guidance clarifies that the rules on publishing information do not affect the rules on the determination of which contracts must be advertised. It explains that:

‘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.’

2. Awarded contracts

Details of all contracts awarded above the relevant thresholds should be published. This include contracts awarded following call-offs from framework agreements and contracts that may not have been openly advertised.

CAs bear the responsibility for publishing, within in a reasonable time, the following details:

• who has won the contract;
• the contract value; and
• whether the winning supplier is a small business or voluntary organisation or charity.

Why is this important?

It is doubtful whether failure to advertise on Contracts Finder would result in a formal legal challenge. No such case has reached the courts. There has also been speculation that this type of challenge would not be worthwhile for an unsuccessful bidder of claims below the EU public procurement thresholds.

CAs should however, bear in mind the risk of informal challenge and possible resultant reputational damage. For example, the Mystery Shopper scheme demonstrates that the CCS has no qualms in naming and shaming CAs with poor compliance performance. Indeed, there is a perception amongst the procurement community that PPN 07/16 has been issued because of the CCS’s suspicion that a considerable number of CAs are failing to meet this publishing requirement.

How can I find out more?

If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0191 204 4464.