On 24 June 2021, the Cabinet Office published PPN 07/21 updating the information for contracting authorities on legal and policy requirements for publishing procurement information on Contracts Finder.
The relevant provisions of the PPN should be applied by contracting authorities with immediate effect, and the associated guidance is divided into two parts setting out the relevant requirements which apply to both the wider public sector (eg local authorities, universities etc), and to central government departments (and their executive agencies and non-departmental public bodies (NDPBs).
Scope and coverage
Part 1 of the guidance replaces PPN 07/16 and its associated guidance, and applies to all contracting authorities across the public sector with the exception of those exempt contracting authorities set out in the PPN and listed below.
Part 2 of the guidance replaces previous guidance relating to central government tenders, and applies to central government departments. The guidance confirms that this may also include other Executive Agencies, and sets out that departments should also encourage their wider arms' length bodies and non-departmental public bodies to adopt the policy on a voluntary basis.
The following public bodies are exempt from applying the provisions of the guidance:
- Contracting authorities whose functions are devolved or mainly devolved functions of Scotland, Wales or Northern Ireland;
- The procurement of health care services for the purposes of the NHS within the meaning and scope of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013); and
- Maintained schools, academies and sixth form college corporations.
Part 1: Guidance applicable to all in-scope organisations
Part 1 provides a summary of the requirements under the Public Contracts Regulations 2015 (the Regulations) for contracting authorities to make public sector opportunities available on Contracts Finder and sets out the key obligations in respect of advertising opportunities and publishing award information.
The PPN reminds contracting authorities of the applicable thresholds for below threshold procurements (at least £10,000 net of VAT for central government authorities, and at least £25,000 net of VAT for sub-central authorities and NHS Trusts), and summarises the requirement to publish on Contracts Finder where a contract opportunity is advertised elsewhere (either on the Find a Tender Service (FTS) or by other means). Contracting authorities should note the timings for issuing notices for publication, and the guidance highlights that such notices should be published within 24 hours either of when the opportunity was first published to FTS or when it was first advertised (noting that the opportunity should always be published in FTS before Contracts Finder where that is necessary).
The guidance also reminds contracting authorities of the position under the Regulations that publication is not required if the opportunity is not advertised by other means (such as where a contracting authority has sought quotes directly).
Additionally, the PPN highlights the need to publish contract award information to Contracts Finder within a "reasonable time", and sets out a useful summary of what is required to be published following the award of a contract, including as a minimum:
- The name of the contractor to be awarded the contract;
- The date on which the contract was entered into;
- The total value of the contract; and
- An indication of whether the contractor is a small and medium-sized enterprise (SME) or a Voluntary, Community and Social Enterprise (VCSE).
Of note, the PPN provides the following definitions for what is considered a "reasonable time" to publish contract award information: - For sub-central authorities – within 90 calendar days of the contract award date; and
- For central government authorities – within 30 calendar days of the contract award date.
The guidance also seeks to clarify the meaning of "contract award date", and provides that for the purposes of publishing to Contracts Finder, this means the date on which the contract was signed by the last contractual party.
Part 2: additional policy guidance for central government authorities
Part 2 of the guidance sets out the additional policies that central government authorities should apply to their procurements which exceed £10,000 net of VAT. The guidance sets out various provisions which are intended to give greater visibility to central government procurement activity, and require central government authorities to publish relevant tender and contract documents to Contracts Finder.
In the first instance, the guidance requires central government authorities to consider what information is available to bidders when an opportunity is advertised. The guidance suggests that, in practice, the use of e-tender platforms (where all relevant information is available for interested bidders) may not necessarily do enough to provide sufficient visibility to the general public. On that basis, copies of the relevant tender information should be published alongside the opportunity on Contracts Finder, including (as a minimum):
- Specifications;
- Plans and other supporting information;
- Invitation to Tender / Request for Quotation / Invitation to Participate in Dialogue;
- Standard Selection Questionnaire; and
- Template terms and conditions.
Following the award of a contract, the guidance reminds contracting authorities that they are required to publish the same information as set out in Part 1 (and summarised above). However, in addition, central government authorities are also required to publish the awarded contract documents alongside the award notice. As above, this information is required to be published within 30 calendar days of the award of the contract (or, for sub-central NDPBs or Arms' Length Bodies who adopt these policies on a voluntary basis, it should be published within 90 calendar days of the award of the contract). For central government authorities, this marks a change from the position in the previous guidance that details of the award should be published within 20 days, and brings the publication requirements in line with the Regulations.
There is also additional guidance about commercially sensitive information which may be exempt from publication, or which the contracting authority may be permitted to redact (including, for example, details about the way the contractor has arrived at their pricing or details about intellectual property rights).
The guidance also summarises the key provisions around publishing award information for high volume contracts let under a framework or Dynamic Purchasing System (setting out that individual award notices are not necessary and that contracting authorities are permitted to group these on a quarterly basis if they chose to do so).
The PPN and its associated guidance serve as a timely reminder of the publication requirements, particularly in light of the high level of public interest that has been generated in respect of central government procurement over the last 18 months, and the recent Good Law Project litigation that has considered this point in the context of the ongoing Covid-19 crisis.
Published PPN 07/21 can be viewed here.
