Procurement in a nutshell – record keeping and reporting

The full regulations are available here.

To save you time and to help all practitioners, each week we will issue succinct notes on key changes.

What’s New?

Documenting Progress and Decisions
Under regulation 84 (7) to (9), CAs are required to document the progress of all procurement procedures, whether carried out electronically or not.

As a minimum requirement, CAs must keep sufficient documentation to justify their decisions at all stages of the procurement including documents on:

• Communications with economic operators and internal deliberations;
• Preparation of procurement documents;
• Dialogue or negotiation (if any);
• Selection and award of the contract.

This documentation has to be kept for at least 3 years.

Copies of Contracts
Regulation 83 obliges all CAs to keep copies of all concluded contracts with a value equal to or greater that €1 million for supply or service contracts and €10 million for works contracts.

CAs have to grant access to these contracts but are able to deny access in accordance with EU or national rules on access and data protection.

Reporting
For every contract or framework agreement covered under Part 2 of the Regulations, regulation 84 (1) states that CAs must draw up a written report including the following information:

• The CA’s name and address, the subject matter and value of the contract;
• Where applicable, the results of the PQQ stage and reduction of tenderers, including the names of the selected candidates and the reasons for their selection and the names of the rejected candidates and the reasons for their rejection;
• The reasons for any tenders rejected for being abnormally low;
• The name of the successful tenderer and the reasons for its selection as well as (if known) the share of the contract which the successful tenderer intends to subcontract and the names of the main subcontractors;
• Where competitive dialogue or the competitive procedure with negotiation was used, the justification for use of those procedures;
• Where a negotiated procedure without prior publication is used, the justification for this;
• Where the CA has decided not to award a contract, the reasons for this;
• Where applicable, the reasons why the CA used non-electronic means of communication for the submission of tenders; and
• Any conflicts of interests detected and subsequent measures taken.

To the extent the contract award notice contains this information, this can be referred to by the CA.

CAs are obliged to communicate the report and/or its content to the Cabinet Office and or the Commission if requested to do so.

CAs should also be aware that certain regulations set out additional reporting requirements not reflected in regulation 84. Additionally, there are some specific exclusions from the regulation 84 reporting requirement for some contracts based on framework agreements under regulation 33(7) and (8)(a).

Why is it important?
The regulations codify good procurement practice in relation to keeping copies of contracts and record keeping, which CAs should largely already be doing.

It is important that CAs are fully aware and have an adequate system in place to meet their reporting obligations for the regulation 84 report.

CAs would be well advised to have a checklist or similar system to ensure compliance.

How can I find out more?
If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0191 204 4464.