Under the Competitive Procedure with Negotiation, any economic operator (supplier) may request to participate in the exercise. The contracting authority makes an initial evaluation of the candidates based upon the grounds of exclusion and the selection criteria published in the contract notice. It may limit the number of suitable candidates to be invited to participate in the procedure. The contracting authority then invites its chosen economic operators (suppliers) to submit an initial tender.
Contracting authorities shall negotiate with tenderers the initial and all subsequent tenders submitted, except for the final tender, to improve their content. The minimum requirements and the award criteria shall not be subject to negotiation.
The Public Contracts Regulations 2015 set out the method and rules under which the negotiation must be carried out.
When the contracting authority intends to conclude the negotiations it shall inform the remaining tenderers and set a common deadline to submit any new or revised tenders, verify that the final tenders are in conformity with the minimum requirements and award the contract based on the pre published award criteria.
Note: It is important that the grounds for exclusion, the selection and the award criteria are not confused and used at the wrong stage of the tendering process. A contracting authority cannot take account of a tenderer's experience, manpower, equipment or ability to perform the contract by an anticipated deadline (which are selection criteria relating to capability) as part of the award criteria. Such criteria should only be taken into account at pre-qualification stage.
A notice is published in the OJEU and on Contracts Finder within 24 hours of the publication of the notice on OJEU, to indicate the use of the competitive procedure with negotiation. Suppliers respond to the advertisement and request to participate usually by completing the contracting authorities pre qualification questionnaire.
The procedure may be completed in successive stages in order to reduce the number of potential solutions by applying the particular award criteria, provided the use of this option is described in the contract notice.
After the award decision has been made:
- all bidders must be advised of the proposed award decision including the information detailed in a Regulation 86 notice and the mandatory standstill period observed;
- a contract award notice must be published in the OJEU within 30 days of the contract award;
- a contract award notice must be published on Contracts Finder within 90 calendar days of the contract award date but not before publication of the OJEU contract award notice;
- any request from a supplier to be de-briefed must be completed within 15 days of the request.
The Competitive Procedure with Negotiation can only be used for works, supplies or services fulfilling one or more of the following criteria:
- the needs of the contracting authority cannot be met without adaptation of readily available solutions;
- they include design or innovative solutions;
- the contract cannot be awarded without prior negotiation because of specific circumstances related to the nature, the complexity or the legal and financial make-up or because of risks attaching to them;
- the technical specifications cannot be established with sufficient precision by the contracting authority with reference to a standard, European Technical Assessment, common technical specification or technical reference;
The competitive procedure with negotiation can be used with regards to works, supplies or services where, in response to an open or restricted procedure only irregular or unacceptable tenders are submitted.