WORKING WITH THE NEW CONSOLIDATED EC PROCUREMENT
DIRECTIVES
Introduction
The three EC Directives (Services, Supplies and Works) have been consolidated
into a single public sector Directive, in order to provide a more simplified legal
framework.
The new Consolidated Directive has evolved through consultation with Member
States, following their assessment of a Green Paper commissioned in 1996-8.
the Consolidated Directive was formally adopted on 31st March 2004, and
Member States have been given until 31st January 2006 to implement the
Consolidated Directives into national law.
Key Changes

A consolidation of the three Directives into one.

A more consistent treatment of issues common to the three established
procurement procedures (open, restricted and negotiated).

A requirement to publish the relative importance of contract award
(evaluation) criteria, with a clarification of the rules on selection and
award.

Greater ability to take into account relevant environmental issues in
specifications and contract award criteria, reflecting European Court of
Justice case law.

Greater encouragement to use a performance specification and more
emphasis on the need to consider equivalence to a specified standard.
Additions

The recognition/promotion of e-procurement.

A new flexible procedure, “competitive dialogue” – for complex projects
such as integrated transport infrastructure projects, large computer
networks and generally “projects involving complex and structured
financing, the financial and legal make-up of which cannot be defined in
advance.”

A legal basis for Framework Agreements.

Amended rules for technical specifications.
1

New grounds for compulsory exclusion of suppliers.

Compulsory use of the CPV (Common Procurement Vocabulary).
What does the University need to do differently?

Since March 2005 the Procurement Office has stated the agreed
evaluation (award) criteria for all tendering exercises in the tender
documentation, and in any OJEU (Official Journal of the European Union)
notices (adverts). We will now need to state in the Notice and the tender
documents any prioritisation of evaluation and/or weighting to be applied
to the criteria. If it is not possible for a department to provide weighting for
demonstrable reasons, the evaluation (award) criteria must be stated in
descending order of importance.

We must exclude any tenderers (candidates) convicted by final judgement
of money laundering, fraud, corruption or participation in a criminal
organisation.

Voice telephony, telex, radiotelephony, paging and satellite services have
had their exclusion from the Directive removed, if they exceed the
applicable threshold they must be tendered in accordance with the
Directive.

A new General Treaty Principle has been introduced and this will increase
what we are required to advertise
“Ensuring for the benefit of any potential tenderer a degree of advertising
sufficient to enable the service market to be opened up to competition
and the impartiality of the procurement process to be reviewed.”
“the precise scope and form of the advertising requirement depends on
the nature of the service in question and the extent to which the contract is
of interest to purely regional, national or EU-wide potential providers.”
In order to comply with this requirement the Procurement Office will place
details of all service tenders over a value of £50K – as recommended by
the Scottish Executive – on its website. This will include a title and a brief
description of the service requirements – any company requesting
relevant tender documentation will be issued with this.
Further to this, each service requirement that falls between £50K-£1135K,
will be judged on its own individual basis, as to whether an advertisement
should be placed in the European Journal – such advertisements shall not
2
require to be tendered in accordance with the prescribed timescales of
contracts that exceed £135K.
The degree of advertising should be determined by the likely level of
interest and value of the Contract.
In any case where an advert is placed on our website and/or another
source, sufficient timescales for obtaining, completing and returning a
tender document shall need to be allowed for, otherwise a company may
have grounds for discrimination due to lack of time to comply. The
Procurement Office will state in the advert and on the website the last date
available to request tender documentation.

“In-house” Awards – where the University is the Contracting Authority and
a University Company is a separate legal entity the rules of the Directive
shall apply. A requirement for goods and services that exceed the
European thresholds shall require to be tendered in accordance with EU
rules and the University Company shall need to bid for the Contract.
Please note that this applies to either a single purchase or similar
purchases/expenditure over a 12-month period that will in aggregation
exceed the threshold.
Where the University is the Contracting Authority and a University
company is in place and the University can demonstrate that it exercises
over the company a control which is similar to that which it exercises over
its own departments AND the University company carries out “the
essential part” of its activities with the controlling entity/entities – i.e. the
University.
In this instance the in-house award is exempt from the EU procurement
rules.
NOTE – Even 100% ownership by the University of the University
company shall not allow the University to award informally if the plan is to
bring in private capital post-contract award. This is based on case law.
We need to consider the following:(i)
(ii)
(iii)
(iv)
Any private shareholding (even 1 or 2%) shall render that entity a
separate legal entity, i.e. you can no longer say “we’re one and the
same”.
The nature of activities undertaken.
Directness of University control.
Proposed changes to University’s control.
3
Tender Assessment – Non-compliant bids

The University must exclude tenders that do not comply with our
substantive requirements (i.e. tenders that do not provide us with what
we requested them to submit with their tender documentation).
Examples are technical details, service back-up details, etc.
To assist Tenderers the Procurement Office will include within tender documents
tick-list sheet for Tenderers to use to ensure they have included everything
requested.
Tender Assessment – Post tender Dialogue
Can we seek improvements in Tenderers bids?

Under the open and restricted procedures, discussions with Tenderers are
only permitted if they are limited to clarifying/supplementing information
already contained in those tenders; absolute prohibition against changes
which could have a distortive effect on the competition i.e. changing the
specification.

Post Tender Negotiation (PTN) on price can only be entered into with the
preferred short-listed supplier – only one. Departments will need to
discuss with the relevant Procurement Office Procurement
Officer/Manager any PTN that the University needs to enter into – prior to
any discussions/correspondence with Tenderers.

Under the negotiated procedures, discussions with Tenderers are
permitted, but they must comply with fairness and openness principles;
also discussions can never lead to important changes in contract
opportunity; as developed through the procurement process.
Please note that strict rules govern the University’s use of open, restricted or
negotiated procedures and the Procurement Office will provide guidance on the
most appropriate method. This will ensure that the University is not open to
challenge from companies and/or the European Commission.
Award of Contracts
Due to case law, a contract can no longer be automatically awarded to the
preferred, evaluated supplier once the evaluation stage has been completed.
The Commission has a requirement for Contracting Authorities to:
Tell all tenderers when they have taken a decision about who will be
awarded the contract – in writing.
4

To provide tenderers a reasonable cooling off time to contact them about
such a decision, before an award of contract is made.
This “standstill period” only applies to contracts caught by EU Procurement
rules and has a minimum 10 calendar day period.
The written notification to all Tenderers must contain the following
information:(i)
(ii)
(iii)
Award criteria
The individual tenderer’s score –where weighting and scoring used
Score and name of winning tenderer.
If this notification prompts a request for a supplier debriefing by the end of the
first two working days of standstill period, this must be provided by the
Procurement Office who will involve the client where appropriate, at least
three working days before the end of the standstill period. If it is not possible
to debrief within this period – the standstill period must be extended.
After the last debrief there must be 3 working days before the end of the
standstill period.
If no legal challenge is received, the award of the contract will be actioned by
the Procurement Office.
Contracting Authorities are encouraged by the Scottish Executive to postpone
the signing of a contract award if a legal challenge is brought during the
standstill period. This is suggested guidance and the Procurement Office
would seek advice from senior officers of the University and the Scottish
Executive where appropriate.
Under the “Remedies” Directive suppliers have the right to take action against
public sector bodies for breaches of the Public Sector Directives. The
“Remedies” Directive is also to be reviewed and we await any changes to this
that will impact on to the University.
Overall the Procurement Office’s advice and policy is – contact us on all
purchases you need to make for both goods and services over £25K. We
can then assist in sourcing the requirements in the most appropriate
method.
The earlier a requirement (or a possible requirement i.e. you are applying
for funding) is communicated to the Procurement Office the more options
may be available and the greater likelihood of achieving your timescales for
meeting objectives and delivering of projects.
5