Where a framework agreement is concluded with more than one economic operator, that framework agreement shall be performed in one of the following ways:
a) Following the terms and conditions of the framework agreement, without reopening competition, where it sets out:
This implies that if the top scoring supplier (under the criteria for award of a call-off) were not able to supply, then you would cascade down to the next highest scoring, and so on. Leaving it open to whichever supplier you like would be risky, as this implies that you would not be in alignment with the equal treatment principle – which would require objective criteria for determining the chosen supplier for the award of the call-off under the framework.
It is often suggested that security of supply is a justifiable objective which would then allow for rotating the awards between suppliers. However, this is difficult to formulate as award criteria, and is not found in the current guidance on frameworks from the Crown Commercial Service. Furthermore, there is no decided case law that we are aware of to clarify this issue. If the value of the individual call-off is below the applicable EU threshold, then the risks are much reduced, as it is arguable that such a call-off contract is not within the scope of the regulations – rather that it is the award of framework itself that is caught by the regulations.
The safest approach would be to have defined award criteria and apply them, adopting a cascade approach where the top scoring supplier cannot supply.
We would advise that a civil penalty would not apply if the Procurement was suspended, however a civil penalty i.e., what we call a dissuasive fine may apply if the Court ordered the remedy of ‘Ineffectiveness’ or a set-aside of an illegal decision made by the Authority.
‘Ineffectiveness’ is only available in 3 scenarios:
This would result in the contract being cancelled or significantly shortened, together with a significant fine (designed to be dissuasive). This also means the Contracting Authority is likely to be taken to court for ‘breach of contract’ by the supplier who has their contract cancelled – so more costs to follow, as well as reputational damage.
The Open Procedure is a one stage procedure where suppliers respond to your advert with their bid, and those that pass the initial suitability section (the mandatory and discretionary pass/fail questions and the minimum capability and capacity pass/fail questions), should have the remainder of their bid assessed in line with the award criteria published in the procurement documents. The winner is the bidder that comes top against these criteria.
There is no opportunity to down select bidders or to hold a staged process in an Open procedure. Effectively you would be using this to down select bidders and to provide an additional stage in the evaluation procedure.
As an authority you can only apply minimum selection criteria, on a pass/fail basis and then exclude from further evaluation the bids of any suppliers that do not meet those criteria, but you are not able to score and evaluate. This would suggest to us that you are able to ensure in those minimum criteria questions that they have experience or ability, but it will be on a pass/fail basis only, there won’t be an opportunity to score.
This is a risk judgement that you would have to make, and we would suggest you seek legal advice.
We would advise as this is as this is not a formal legal challenge i.e., a ‘claim form’ there is no express obligation to acknowledge receipt of any informal request and extend the time period.
The only express duty is to refrain from entering into the contract on receipt of a claim form (or knowledge that one has been issued from the court).
Reg 95(1) states:
There is no mandatory obligation to suspend standstill or extend the timescales in the event of an enquiry (the PCR 2015 do not recognise ‘soft challenges’)
There is a general provision (Reg 2(4)) relating to time periods within the regulations which states (emphasis added):
In Parts 2, 3 and 4 (except regulation 52(4)), any reference to a period of time, however expressed, is to be interpreted subject to the requirement that where the period –
However, it would be prudent to ensure all enquiries are dealt with to prevent any escalation to a formal challenge at a later stage. This maybe after the standstill period but still within the 30-day period permissible for suppliers to challenge.
These FAQs as well as over 300 more are available in our online library, THEMiS.
We can help you navigate the EU and UK Procurement laws relevant to your authority and utility with THEMiS. Request a call back to learn more about it.