Q&As

Can you limit the number of bids a tenderer can submit for a procurement exercise under the Public Contracts Regulations 2015 and can you prevent variant bids from being submitted?

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Published on LexisPSL on 25/08/2017

The following Commercial Q&A provides comprehensive and up to date legal information covering:

  • Can you limit the number of bids a tenderer can submit for a procurement exercise under the Public Contracts Regulations 2015 and can you prevent variant bids from being submitted?
  • Limiting the number of bids a tenderer can submit
  • Issues for consideration if multiple bids submitted
  • Variant bids
  • Further reading

Limiting the number of bids a tenderer can submit

A contracting authority (CA) may wish to limit the number of bids a tenderer may submit in a public procurement exercise. The CA’s power to decide whether to do so must be exercised taking into account capacity, open competition and equal treatment and/or in order to ensure the integrity and objectives of the procurement in accordance with the applicable rules. For background reading, see Practice Notes: Introduction to public contracts procurement and The principles of EU procurement.

In practice, multiple tenders for the same contract may be submitted in the following scenarios:

  1. a tenderer acting alone could submit a number of bids in response to an expression of interest/invitation to tender, and

  2. a supplier might participate alone in one tender submission, and in one or more groups in respect of other tender submissions

In these scenarios a CA is not under an obligation imposed by EU law, English law or in particular the Public Contracts Regulations 2015, SI 2015/102 (PCR 2015), to allow a tenderer to submit two or more bids or to participate.

In Makedoniko Metro and another v Elliniko Dimosio, the Court of Justice observed that it is a matter for national law (and assuming no restriction applies, then for individual contracting authorities) to impose rules on the composition of groups, and any change in their composition.

The

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