Domestic advertising of OJEU contracts
Updated: Feb 16, 2018
24 Feb 2014
I have recently been investigating the appropriate timing of domestic (national) advertising of contracts that are subject to OJEU publication.
The Public Contracts Regulations 2006 says [para 42 (4) (a)] that the contracting authority shall not place a notice in any publication before the date on which the notice is despatched (to the OJEU as described in the Regulations). I have recently come across a view that contracts should not be advertised domestically until the notice has been published in the OJEU; a quick post to the LinkedIn 'Procurement in UK Public Sector' group found a range of answers from 'you can advertise the minute you have despatched the notice to the OJEU' (this includes my own understanding) through to 'you really ought to wait five days'!
Well it seems this question must have been asked before (even though there is little consistency on how the process should work) because the new EU Directive on Public Procurement addresses the issue with what should be clear instruction: at Article 52 it is clearly stated that:
Notices referred to in Articles 48 [Prior Information Notices], 49 [Contract Notices] and 50 [Contract Award Notices] and the information contained therein shall not be published at national level before the publication pursuant to Article 51 [the process by which notices are submitted to the OJEU]. However, publication may in any event take place at the national level where contracting authorities have not been notified of the publication within 48 hours after confirmation of the receipt of the notice in accordance with Article 51.
So there we have it, subject to the transposition of the Directive into a UK Regulation it seems that in future we will dispatch the notice and publish at national level when the notice is published in the OJEU, or after 48 hours, whichever is the sooner.
The next question may be around how aligned should your 'national publication' advertisement be with the OJEU Notice. The new EU Directive says:
Notices published at national level shall not contain information other than that contained in the notices dispatched to the Publications Office of the European Union or published on a buyer profile, but shall indicate the date of dispatch of the notice to the Publications Office of the European Union or its publication on the buyer profile.
Watch this space...
If you have been watching this space...
You might like to refer to the Public Contract Regulations 2015 which say in Regulation 52, much like the EU Directive discussed above, that contracts shall not be advertised nationally before they are published on the OJEU, or within 48 hours of their dispatch to the OJEU, effectively meaning whichever is the sooner.
You may also like to look at Regulation106 which says that contracts advertsied on the OJEU must be advertised on the Contract Finder website within 24 hours of when they are entitled to be advertised nationally in accordance with Regulation 52. As both regulations refer to hours and not working days (or working hours) the it may be that opportunities appear in Contract Finder at the weekend or on public holidays.