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last updated: 13th May 2016

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 OJEU and / or Contracts Finder. Further information on drafting OJEU contract notices can be found in A Guide to Completing OJEU Contract Notices.  Further information on drafting Contracts Finder contract notices can be found in Crown Commercial Service Guidance on the new transparency requirements for publishing on Contracts Finder.

In general, the requirements of where and when to advertise will be:

  • All requirements where the estimated value is above the appropriate EU threshold will be advertised in the OJEU and on Contracts Finder in compliance with the Regulations concerning Advertising.
     
  • For requirements where the estimated value is below the appropriate EU 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 EU 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.

 

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