Depending upon the value of a proposed tender exercise, it may be necessary to advertise the requirement to ensure there is sufficient competition and opportunity for potential tenderers to know about the tender. Your institution will have financial thresholds at which different advertising requirements may apply.
Advertising will generally involve drafting a contract notice on either Find a Tender Notice and / or Contracts Finder Notice. All fields the Find a Tender Contract Notice are mandatory save where not applicable. If a contracting authority is publishing an FTS notice on a merely voluntary basis (where the 2015 Regulations do not apply) it is common to include a statement in the notice that, while the contracting authority has decided to advertise on a voluntary basis, does not represent a commitment to follow one of the official procurement procedures. However, even where this statement is included, we would recommend that in practice the contracting authority aims to follow one of the official contract award procedures.
Note that Regulation 53 requires the "procurement documents" to be made available electronically from the date of the advertisement, which should include now the internet link where the procurement documents are accessible.
Further information on drafting Contracts Finder contract notices can be found in the Contracts Finder section of this website.
In general, the requirements of where and when to advertise will be:
- All requirements where the estimated value is above the appropriate PCR 2015 threshold will be advertised in the FTS and on Contracts Finder in compliance with the Regulations concerning Advertising.
- For requirements where the estimated value is below the appropriate PCR 2015 threshold and where your institution chooses to advertise (e.g either to comply with your own financial regulations or to identify potential tenderers), an advert must be published on Contracts Finder in compliance with the Regulations concerning Contracts Finder advertising.
- For requirements where the estimated value is below the appropriate PCR 2015 threshold and you have determined the requirement may be of cross border interest, an advert must be published on Contracts Finder in compliance with the Regulations concerning Contracts Finder advertising.
Some practical suggestions determining cross border interest:
- For each contract opportunity, assess whether the contract could be of interest to providers in other Member States. Consider subject-matter, contract value, the specifics of the market concerned, and the geographical location where the contract is to be carried out.
- If the value of the contract is modest, it’s unlikely to be of interest to providers in other Member States, with the result that advertising is not required.
- Remember that it is your responsibility as a contracting authority to decide whether an intended contract has cross border interest. Consequently don’t adopt a blanket approach to all contract opportunities but make the decision on whether to advertise on a case by case basis.
- Be aware that the European Commission has been active in this area, instituting proceedings against Member States for failure to advertise contracts an example can be found in the case of Mansfield District Council v Secretary of State for Communities and Local Government. Be sure that you record in writing whether you believe there is a realistic prospect of any cross border interest in below threshold contracts.