Q&As

Can a contracting authority change the procedure adopted for a public procurement exercise (eg from open to negotiated procedure) once the procurement process has started?

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Produced in partnership with Brendan Ryan of Pinsent Masons
Published on LexisPSL on 01/08/2017

The following Public Law Q&A produced in partnership with Brendan Ryan of Pinsent Masons provides comprehensive and up to date legal information covering:

  • Can a contracting authority change the procedure adopted for a public procurement exercise (eg from open to negotiated procedure) once the procurement process has started?

In conducting our research we have focussed on above-threshold procurement exercises regulated by the Public Contracts Regulations 2015, SI 2015/102 (PCR 2015).

As a general rule, contracting authorities conducting a public procurement exercise must adhere to the rules of the procedure that have been indicated/advertised in the Official Journal of the EU (OJEU) contract notice. Subject to the comments below, this means that it is not possible to negotiate with tenderers in, for example, an open or restricted procedure tender process. In particular, the Court of Justice made clear in SAG ELV Slovensko that: ‘the principle of equal treatment of tenderers and the obligation of transparency resulting therefrom preclude, in [the restricted] procedure, any negotiation between the contracting authority and one or other of the tenderers’. For background reading, see Practice Notes: The principles of EU procurement and Transparency in procurement processes. See also Q&A: To what extent can a contracting authority approach/ask an individual bidder in a public procurement exercise to amend their bid, or to correct mistakes?

Failure to adhere to the rules applicable to the advertised procurement process would constitute a procedural breach on the part of the co

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