The rules on when an OJEU notice can be advertised nationally have changed. This blog post will aim to clarify the new rules and discuss the benefits and shortcomings of these new rules.
What are the rules?
Under the new legislation OJEU notices are now not to be published nationally until AFTER they have been published in the journal or 48 hours from the point of dispatch to OJEU (Article 52 of the 2014 EU Directive transposed in Regulation 52 of the Public Contracts Regulations 2015). The addition of the “or 48 hours from dispatch” is likely to be due to the fact that OPOCE (the publication office for OJEU) have 5 working days to publish a notice, if they were to exercise this full 5 working days then this may adversely affect the time the notice is publicly advertised for.
In addition, for contracting authorities in England, Regulation 106 states that OJEU notices MUST be published on Contracts Finder within 24 hours of them appearing in OJEU.
Please note that the minimum timescales for a notice to be advertised continues to be from the point the notice is dispatched to OJEU and NOT the point the notice is published. The legislation does continue to state that “adequate” time must be given so some consideration should be given to the delays caused by these new rules.
How has this changed?
Previously there was not a statutory obligation to advertise in Contracts Finder and an OJEU notice could be advertised nationally as soon as it was dispatched to OJEU (Article 36 of the 2004 EU Directive transposed in Regulation 42 of the Public Contracts Regulations 2006).
What does this mean in practice?
This shift in publication procedure means that the publication of OJEU notices is now more onerous on contracting authorities who can no longer complete their publication of a notice all in one day. They now need to monitor the notice’s progress and stagger its publication – ensuring that publication nationally does not occur too soon to cause a breach of Regulation 52 but then (for English contracting authorities) not too late that it causes a breach of Regulation 106.
There is also an assumption in the legislation that publication in OJEU will occur first however this is unlikely as OPOCE have 5 working days to publish a notice. It is more than likely that the 48 hours will pass first. Millstream’s experience as an official eSender is that publication in OJEU within 48 hours is currently the exemption rather than the rule.
Why the change?
As far as we can see, the EU have not specified an exact reason for this shift in publication procedure. It can only be assumed that this has been incorporated to promote equal treatment and cross-border trading. Under the previous rules it was possible for an opportunity to be published in one member state several days prior to it being published in OJEU. It could be argued that this gives the members of the originating Member State an unfair advantage. This argument is not overly convincing as under the new regulations this still may be the case. A notice can be published nationally 48 hours after it has been sent for publication to OJEU. OPOCE have five WORKING DAYS to publish a notice. A notice published on a Friday can be advertised nationally come Monday however may not appear on OJEU for a further 4 days as not as many “working days” have passed.
It is also questionable whether this additional delay in ANY advertisement is adequate in light of the new shorter timescales. The standard timescales have already been substantially shortened and the availability of the accelerated procedures extended (please see this blog post for further information on the new rules surrounding the accelerated procedures). If the new accelerated open procedure is used then the minimum timescales (which start from the point the notice is dispatched to OPOCE for publication, not when it is actually published in OJEU) would be 15 days. Given that the notice cannot be advertised anywhere for 48 hours the notice is likely to only have 13 days publication. This delay will cause the already substantially shorter timescales to be even shorter. Surely this does not benefit suppliers – no matter what EU Member State they reside in. Is some advertisement of the opportunity not better than no advertisement?
It is also worth noting that one of the main simplification measures proposed by the Commission was to alleviate the publication requirements for contracting authorities. These new onerous rules certainly do not simplify the publication procedures to be followed by contracting authorities.
How can Millstream help?
The silver lining is that Millstream’s online solution mytenders offers a service whereby the contracting authority will only have to publish the notice once and then mytenders will ensure that the notice is advertised nationally only after the allowed time and onto Contracts Finder within the required time. This relieves the contracting authority of this obligation. As official eSenders to OJEU and partners with Contracts Finder mytenders has all the required functionality to ensure that contracting authorities guarantee their compliance with these new rules.
The Millstream product Tenders Direct can also help suppliers ensure that they are first to know of opportunities when they are made publicly available.
Categories: Procurement Law