The Government Procurement Service (GPS) has recently announced the entry into force of a new framework agreement for strategy & planning services that gives all public sector organisations access to 15 agencies providing strategic communications support including campaign strategy development, trend forecasting and target audience identification. According to GPS, The new framework makes the most of the public sector’s buying power and will deliver savings of up to £1 million a year for the taxpayer, whilst maximising the quality of innovative work offered by agencies. With 60% of suppliers on the framework being small and medium enterprises (SMEs), the new framework gives SMEs real opportunities to secure government contracts.
It is interesting to stress that the conclusion of this framework agreement could have been fatally flawed due to a significant oversight in the tender documentation--which originally failed to meet the fundamental requirement that 'multiparty' framework agreements must expressly indicate the contracting authorities that call-off work under the agreement.
Under Article 32(2)II of Directive 2004/18,
Contracts based on a framework agreement [...] may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.
The European Commission has interpreted that requirement in the following terms:
in the case of a framework agreement concluded by a central purchasing body acting as an intermediary [...] it would not therefore be sufficient to indicate that the agreement can be used by “contracting authorities” established in the Member State in question. In fact, such an indication might not render it possible to identify the entities that are parties to the agreement due to the difficulties that may arise in determining whether an entity does or does not meet the definition of a body governed by public law. On the other hand, a description permitting immediate identification of the contracting authorities concerned — for example “the municipalities of x province or of y region” – renders it possible to verify that the provision of Article 32(2), second indent has been observed.
Such a requirement is well-know to GPS since, under its previous existence as the Office of Government Commerce (OGC), it published Guidance on Framework Agreements where it went beyond the interpretation of the European Commission and indicated thatWhen class descriptions do not allow ‘immediate identification of the contracting authorities concerned”, a reference to where details of the authorities covered can be obtained should be included in the notice. For example, if there is an accessible list of contracting authorities in a relevant “class”, or an organisation with responsibility for maintaining details of the members of a “class”, that list or organisation should be quoted in the Contract Notice and, where possible, a link to this information included.
In view of all such guidance as to the required level of precision of the scope of application of framework agreements, it seems rather clear that the initial tender documentation for GPS' strategy & planning services framework was indeed incomplete. The Schedule of Requirements for the tender indicated that
Full details of the Contracting Bodies eligible to access the Strategy and Planning Framework Agreement, can be found in the OJEU Contract Notice. Only those listed (including the organisations described on the appropriate webpage links) will be able to access the Framework Agreement.
However, in the notice sent to the Official Journal of the European Union (OJEU), there was no such list. GPS indicated that
Government Procurement Service as the Contracting Authority is putting in place a Pan Government Collaborative Framework Public Sector bodies have a need for a range of strategy & planning services within the communications / marketing sector. This requirement is not seeking market research, creative or mediabuying services. Agreement for use by the UK public sector bodies identified at VI.3 (and any future successors to these organisations), which include Central Government Departments and their Arm's Length Bodies and Agencies, Non Departmental Public Bodies, NHS bodies and Local Authorities.
And the, in the relevant part of the notice (VI.3), it is simply stated that:
Government Procurement Service wishes to establish a Framework Agreement for use by the following UK public sector bodies (and any future successors to these organisations): “Copy the latest version of the Customer List here” (emphasis added).
Now, this may just seem too embarrassing to be true (where are the proof-readers?), but such a failure to include the list of contracting authorities that can resort to the framework agreement to call-off contracts for strategy & planning services would have rendered the whole framework agreement ineffective under EU public procurement rules.
Luckily, someone eventually spotted the mistake and GPS published an addition to the original OJEU notice, where a full list of 'classes' of contracting entities and public bodies (with weblinks to further developed lists) was included. GPS has not kept this additional publication in its publicly available file, so it took some digging to find it out. However, it is clear to me that the initial omission has been effectively corrected.
Nonetheless, I think that the case is still worth considering a bit further. In case the additional information had not been published and some litigation followed the conclusion of the framework agreement, it would all have boiled down to determining whether the ommission of the specific list of bodies covered by the framework agreement was cured or covered by the general description that the agreement would have been available to 'Government Departments and their Arm's Length Bodies and Agencies, Non Departmental Public Bodies, NHS bodies and Local Authorities.'
In my view, such a description would have been too vague to meet the requirements of current Article 32(2)II of Directive 2004/18. This conclusion may be slightly less clear under the future rules on framework agreements, as Article 31(2)II of the new public sector procurement Directive is bound to mandate that
Contracts based on a framework agreement [...] may be applied only between those contracting authorities clearly identified for this purpose in the call for competition or the invitation to confirm interest and those economic operators party to the framework agreement as concluded.
However, I would submit that the 'clearly identified' prong of the test still would need to follow the guidance provided by the European Commission and OGC (discussed above), so that at least a reference to where details of the authorities covered can be obtained should be included in the notice.