Contract award notices are subjected to the rules and requirements of reg.50 of the Public Contracts Regulations 2015 (PCR2015), which transposes Article 50 of Directive 2014/24. This is the main instrument of public procurement transparency [other than debriefings of disappointed candidates and tenderers under reg. PCR2015] and is aimed to ensure that the outcome of the process is made public.
Under reg.50(1), after the award of a contract or the conclusion of a framework agreement, contracting authorities shall send for publication a contract award notice on the results of the procurement procedure not later than 30 days following the decision to award or conclude it.
Such notices shall contain the information set out in part D of Annex 5 to Dir 2014/24 and be sent for publication in accordance with reg.51 PCR2015 [reg.50(2)].
However, in order to avoid excessive transparency, certain information on the contract award or the conclusion of the
framework agreement may be withheld from publication where its release
would impede law enforcement or otherwise be contrary to the public
interest, would harm the legitimate commercial interests of a particular
economic operator, public or private, or might prejudice fair
competition between economic operators [reg.50(6) PCR2015]. Consequently, contracting authorities need to exercise careful discretion when it comes to the specific content of the contract award notice and, once more, they should be aware and vigilant against transparency excesses that may favour collusion [see A Sanchez Graells, "The
Difficult Balance between Transparency and Competition in Public
Procurement: Some Recent Trends in the Case Law of the European Courts
and a Look at the New Directives" (November 2013)
University of Leicester School of Law Research Paper No. 13-11].
Reg.50(3) PCR2015 sets special rules for contract award notices that follow a previous prior information notice (PIN) under reg.48 PCR2015 (see here and here). According to this special rule, where the call for competition for the contract concerned has been made in the form of a PIN and the contracting authority has decided that it will not award further contracts during the period covered by the PIN, the contract award notice shall contain a specific indication to that effect. This requirement should be seen as a method to keep the market updated on the actual procurement plans of the contracting authority. In my view, this requires a sensible approach, as excessive transparency could be damaging. Consequently, contracting authorities may want to delay disclosure of dropped procurement projects until they are final and irreversible and, in any case, measure the content of their PINs from an early stage.
Reg.50(4) PCR2015 adjusts the requirements for the publication of contract award notices to the working of framework agreements, and determines that contracting authorities shall not be bound to send a notice of the results of the procurement procedure for each contract based on such an agreement. This is meant to simplify the operation of the framework agreement once it is in place.
In my view, the interpretation implicit in the PCR2015 is that the entire clause is discretionary for Member States. However, it can also be interpreted that the only space left for Member States in making such a choice is to determine the frequency with which the reporting and publication of the grouped notices needs to be carried out, which is in any case limited to a minimum quarterly periodicity. Imposing no regular reporting and publication obligation on the specific working of the framework agreement whatsoever seems to me to be in breach of the general principles in reg.18 PCR2015 / Art 18 Dir 2014/24 and, consequently, at least an instance of poor (if not improper) transposition.
To be sure, the choice under reg.50(4) PCR2015 reduces transparency, which can generally be a good thing. However, it does so in a way that deviates from the clear objective of Dir 2014/24, particularly in view of requirements linked to monitoring of procurement [arts 84(2) dir 2014/24]; and it reduces a sort of transparency that is not necessarily of the most damaging type, given that it refers to aggregated information that is published with some delay. Hence, in my view, there is no good justification for this approach and the PCR2015 incurs in an potential infringement of EU law on this point, at least under a strict view on the relevance of the principles in reg.18 PCR2015 / Art 18 Dir 2014/24. Hence, a modification of reg.50(4) PCR2015 is desirable, to align the transparency requirements for framework agreements with those for dynamic purchasing systems.
In that regard, reg.50(5) PCR2015 finally establishes specific rules for dynamic purchasing systems and foresees that contracting authorities shall either (a) send a contract award notice within 30 days after the award of each contract based on a dynamic purchasing system, or (b) group such notices on a quarterly basis, in which case they shall be sent within 30 days of the end of each quarter.