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Procurement manual: guide to procurement within BERR. Annex 6: annex to section G

URN No: 08/1509/A16

Department for Business, Enterprise and Regulatory Reform procurement manual annex 6: annex to sections G

ANNEX 6:

ANNEX to SECTIONS G : A Guide to the EU Services Directive

Annex 6.A Useful Information Available on SIMAP

Annex 6.B Residual Service Categories

Annex 6.C Flowchart for the Open Tender Procedure

Annex 6.D Flowchart for the Restricted Tender Procedure.  Including information about Competitive Dialogue.

Annex 6.E Flowchart for the Negotiated Procedure with Prior Contract Notice

Annex 6.F Flowchart for the Negotiated Procedure without Prior Contract Notice

Annex 6.G Milestones for a Contract Under the Restricted Procedure

Annex 6.H Technical Specifications

Annex 6.I Supplier Appraisal

Annex 6.A USEFUL INFORMATION AVAILABLE ON SIMAP

6.A.1 Contents

Introduction to placing OJEU notices
Guidance for Users
CPV Codes
Languages
NUTS Codes
Service Categories
Units

6.A.2 Introduction to placing OJEU notices

The Department uses Project (a web-based software package) for the generation of OJEU Notices.  This information is then passed electronically to SIMAP (a web-based software package) at the OJEU office in Luxemburg.  It is BERR policy that Project software should always be used - no other method for the drafting and publication of OJEU Notices is permitted.  Procurement Policies & Services (PPS) within IWS Commercial Office have access to this software.

For staff without access to Project the following paragraphs 6A and 6B explain information that is required when placing an OJEU add via SIMAP.  SIMAP is an initiative with the objective of developing an information systems infrastructure to support the delivery of an effective public procurement policy in Europe.   SIMAP provides contracting entities and suppliers with the information needed to manage the procurement process effectively.

6.A.3 Guidance for users Navigating SIMAP

Once the SIMAP home page is accessed, click on the word <Welcome> to navigate to the English portion of the site. Unfortunately the SIMAP website does not allow links to individual pages  so it is always necessary to enter the site via the Home page (book marking a specific page  does not work and one is redirected to the SIMAP Home/Welcome page).

The SIMAP site contains a range of information on undertaking a procurement exercise under the EU Directives. The information available on the SIMAP website is extensive. It is, however, recommended that this site be used as a database and consulted as and when specific information is needed.

It is NOT RECOMMENDED that information from the SIMAP website be copied and saved into a Word document.

Attempts to copy the SIMAP website have resulted in corrupted Word documents and severe problems with the Word software installed on PCs.  Further,  a SIMAP version saved to PC will be out of date when the SIMAP site information is updated.

The most useful information on the SIMAP website for any officer working on a procurement exercise under the EU Directives includes the following:

•        Common Procurement Vocabulary (CPV) Codes

•        Languages

•        NUTS Codes

•        Service Categories

•        Units

6.A.4 Common Procurement Vocabulary (CPV) Codes

CPV (Common Procurement Vocabulary) codes need to be included in all Standard Forms. A link to the page with a current list of these can be found on the SIMAP website.  From the homepage, navigate to the English version of the site by clicking on the word "Welcome" and select the page titled “CPV, Standards and Best Practices”.

6.A.5 Languages

Should it be necessary that an OJEU Notice specify the return of tenders or expressions of interest in a language other than English (EN) then a list of the officially recognised language abbreviations can be found on the Languages page accessed via the page entitled “CPV, Standards and Best Practices” on the English version of the SIMAP website.

6.A.6 Nomenclature des Unités Territoriales Statistiques (NUTS) Codes

All OJEU Notices must contain the relevant Nomenclature des Unités Territoriales Statistiques (NUTS) codes which identify the part of the country that will provide the service being purchased. These codes have been agreed progressively within the EU and may not necessarily be completely up-to-date. A link to the page with the NUTS codes can be found on the English-version of the SIMAP website on the page entitled “CPV, Standards and Best Practices”.

6.A.7 Service Categories

A link to the Service Categories page can be found at the English-version of the SIMAP website on the page entitled “CPV, Standards and Best Practices”.

6.A.8 Units

Should it be necessary to refer to specific units of measurement in any OJEU notice a list of these can be found following a link to the Units page on the English-version of the SIMAP website on the page entitled “CPV, Standards and Best Practices”.

Annex 6.B RESIDUAL SERVICE CATEGORIES

Residual Services do not have to be advertised but must comply with the rules on technical requirements and require a contract award notice to be sent to the OJEU Office within 48 days of the contract being awarded.  The following services are examples of residual services.

Please consult your procurement account manager in IWS Commercial Office to clarify if your procurement falls under the category of “Residual Services”.

Anne 6.C FLOWCHART FOR THE OPEN TENDER PROCEDURE 

Notes: All days are calendar days and "with PIN" relates to requirements that have been the subject of a Prior Information Notice.

Annex 6.D FLOWCHART FOR THE RESTRICTED TENDER PROCEDURE, includes information about Competitive Dialogue.

                                  Accelerated Procedure                                                  Normal Procedure

Notes: All days are calendar days and "with PIN" relates to requirements that have been the subject of a Prior Information Notice.

Competitive Dialogue

The Competitive Dialogue procedure is similar to the Restricted Procedure, adding in a stage between Pre Qualification of suppliers and Inviting suppliers to tender.  In this period the department will invite suppliers to carry out dialogue with the Authority.  During this period a series of draft proposals may be submitted for discussion.  Unworkable solutions will be rejected eliminating that supplier from the competition.  The Authority, once final solutions have been identified will move to the Invitation to Tender stage.

Competitive Dialogue is used when the solution cannot be identified at the start of the project and allows for discussion with the suppliers to find a workable solution.  This process is unlimited in terms of time but on average adds 3 months onto the procurement process.

Annex 6.E FLOWCHART FOR THE NEGOTIATED PROCEDURE WITH PRIOR CONTRACT NOTICE

                       Accelerated Procedure                              Normal Procedure

Notes:  

All days are calendar days.

The Negotiated Procedure should only be used when either Open or Restricted procedure have failed to produce a satisfactory bid. 

Annex 6.F FLOWCHART FOR THE NEGOTIATED PROCEDURE WITHOUT PRIOR CONTRACT OR INFORMATION NOTICE

Notes:  

The Negotiated Procedure should only be used when either Open or Restricted procedure have failed to produce a satisfactory bid.  The Negotiated Procedure without Prior contract or Information notice would only be used in exceptional circumstances.  Consultation must take place with your IWS Commercial Office procurement account manager in the first instance.

Annex 6.G MILESTONES FOR A CONTRACT UNDER THE RESTRICTED PROCEDURE

Notes: The timings above do not include time taken to devise and agree the contract requirement (Produce specification, prepare criteria for tender evaluation and candidate appraisal, etc.) but set out an assumption of the amount of time needed to actually appraise candidates and prepare (tender) short list and evaluate the tenders.

It is important to bear the note above in mind when considering that the chart above shows the elapsed time to award of contract as 96 calendar days (approximately 3 months), based on estimated and EU required timings. In reality it will, in actual time, be longer.

In addition major contracts, which might involve further action, may need activities such as a bidders conference, bid clarification, the establishment and running of a Tender Steering Board and post tender negotiation (actions 6, 8, 9, 10 and 11). The time needed in these circumstances is likely to be considerably greater than that indicated in the chart above.

Annex 6.H TECHNICAL SPECIFICATIONS - DEFINITION OF TERMS AND DEROGATIONS

UK Statutory Instrument (SI) Interpretation

6.H.1 Definition of Terms

Technical Specification
The technical requirements defining the characteristics required of the work/works and the materials and goods used in or for them (such as quality, performance, safety or dimensions) so that the requirement is described objectively in a manner that ensures it will fulfil the use for which it is intended by the contracting authority.

Common Technical Specification
A technical specification drawn up in accordance with a procedure recognised by the Member States with a view to uniform application in all Member States and as published in the Official Journal.

European Specification (only defined in UK SI)
A common technical specification, a British Standard implementing a European standard, or a European technical approval.

Standard
A technical specification approved by a recognized standardising body for repeated and continuous application, compliance with which in principle is not compulsory.

European Standard
A standard approved by the European Committee for Standardisation (CEN) or by the European Committee for Electrotechnical Standardisation (CENELEC) as a 'European Standard (EN)' or 'Harmonisation Document (HD)' according to the common rules of these organisations  or by the European Telecommunications Standards Institute (ETSI) as a 'European Telecommunications Standard (ETS)'.

European Technical Approval (only defined in EC Directive)
An approval of the fitness for use of a product, issued by an approval body designated for this purpose by a Member State following a technical assessment of whether the product fulfils the essential requirements for building works, having regard to the inherent characteristics of the product and the defined conditions of application and use. 

Essential Requirement
Requirements relating to safety, health and certain other aspects of general interest which the service must meet.

6.H.2 Derogations

The technical specifications relating to public services contract documents shall be defined by reference to any relevant European specifications unless:

•        the contracting authority is under obligation to define the technical specifications by reference to technical requirements mandatory in the United Kingdom for the services to be provided under contract or for the materials or goods to be used in or for it (but only to the extent that such an obligation is compatible with EU obligations);
 

•        the relevant European specifications do not include provisions for establishing conformity to, or it is technically impossible to establish satisfactorily that services or the material or goods do conform to, the relevant European specifications;
 

•        definition by reference to the relevant European specifications would conflict with the application of Council Directive 86/361/EEC on the initial stage of mutual recognition of type approval for telecommunication terminal equipment or Council Decision 87/95/EEC on standardisation in the field of information technology and telecommunications or other Community instruments relating to specific services, material or goods;
 

•        application of the relevant European specifications would oblige the contracting authority to use materials or goods incompatible with equipment already in use or would entail disproportionate costs or disproportionate technical difficulties - but a contracting authority may only define the technical specifications other than by reference to relevant European specifications on such grounds where the contracting authority has a clearly defined and recorded strategy for changing over, within a set period, to European specifications; or,
 

•        the project is of a genuinely innovative nature for which use of existing relevant European specifications would be inappropriate.

A contracting authority must state in the contract notice which of the circumstances specified above was the grounds for defining the technical specifications other than by reference to European specifications. If it is impossible to include this information in the contract notice or it is a proposed residual services contract, the contracting authority shall specify this in the contract documents and shall keep a record of this information which, if requested by the Commission or any Member State, it shall send to the Treasury for onward transmission to the Commission or requesting Member State.

In the absence of European specifications relevant to the services to be provided under a public services contract or to the material or goods to be used in or for it, the technical specifications in the contract documents must comply with the following:

•        be defined by reference to the British technical specifications recognised as complying with the basic requirements specified in any Council Directive on technical harmonisation in accordance with the procedures laid down in those directives and, in particular, in accordance with the procedures laid down in Council Directive 89/106/EEC on the approximation of laws, regulations and administrative procedures in the Member States relating to construction products;

•        be defined by reference to British technical specifications relating to design and method calculation and execution of work or works and the use of material or goods; and,

•        be defined by reference to the following standards (and, if so defined, preference is given to the standards in the order in which they are listed below):

1.        British Standards implementing International Standards;

2.        other British Standards & Technical Approvals or,

3.        Any other standards.

6.H.2.3 Reference to Goods of a Specific Make/Source or Specific Process and Use of "Or equivalent"

Contract documents relating to a public services contract shall not include technical specifications which refer to materials or goods of a specific make or source or to a particular process and which may favour or eliminate particular service providers. Also, references to trademarks, patents, types, origin or means of production shall not be incorporated into technical specifications in contract documents. However, a contracting authority may incorporate such references into the technical specifications in the contract documents if:

•        such references are justified by the subject of the contract; or,

•        the subject of the contract cannot otherwise be described to all service providers by reference to technical specifications which are sufficiently precise and intelligible and provided that the references are accompanied by the words "or equivalent".

Annex 6.I SUPPLIER APPRAISAL - GROUNDS FOR EXCLUSION & REFERENCES WHICH MAY BE REQUESTED

6.I.1 Contents

Criteria for Rejection of Suppliers - EU Directive Article 29 & SI Reg 14(1)
Criteria for Rejection of Suppliers - EU Directive Article 30 & SI Reg 14(5)
Information as to Economic & Financial Standing - EU Directive Article 31 & SI Reg 15
Information as to Ability and Technical Capacity - EU Directive Article 31 and UK SI Regulation 16
Confidentiality of Information - EU Directive Article 32(4) and UK SI Regulation 30
Supplementary Information (EC Directive Article 34 and UK SI Regulation 17)

6.I.2 Criteria for Rejection of Suppliers - EU Directive Article 29 and UK SI Regulation 14(1)

This section sets out the usual reasons for excluding companies including bankruptcy, judgement of professional misconduct, failure to meet tax or social security obligations and serious misrepresentation.

6.I.3 Criteria for Rejection of Suppliers - EU Directive Article 30 and UK SI Regulation 14(5)

Contracting authorities may request proof of enrolment on professional and trade registers for example, in the UK, with Companies House or the Registrar of Friendly Societies.

6.I.4 Information as to Economic and Financial Standing - EU Directive Article 31 and UK SI Regulation 15

Contracting Authorities are entitled to be supplied with any or all of the following references or satisfactory equivalents, relating to a candidate's or tenderer's financial and economic standing (UK SI Interpretation):

appropriate statements from the services provider's bankers, or evidence of relevant professional risk indemnity insurance;

statements of accounts or extracts relating to the business of the service provider where publication of the statement is required under the law of the Member State in which the services provider is established; and,

a statement of overall turnover for the business of the services provider and the turnover in respect of the provision of services of the type to be provided under the proposed services contract in the 3 previous financial years of the services provider.

A contracting authority which requires the above information shall specify in the contract notice or in the invitation to tender which specific information the services provider must include.

6.I.5 Information as to Ability and Technical Capacity - EU Directive Article 31 and UK SI Regulation 16

The ability of a services provider may be evaluated with regard to his skills, efficiency, experience and reliability.

Technical capability may be furnished by (UK SI Interpretation):

•        the services provider's educational and professional qualifications where the services provider is an individual and the qualifications of the services provider's managerial staff if any of persons would be responsible for providing the services under the contract;
 

•        the principal services provided in the past 2 years by the services provider of a similar type to those to be provided under the contract.  The dates on which the services were provided, the consideration received and the identity of the services recipient, any certificate issued or countersigned by the recipient confirming the details of the services provided or, but only where the recipient is not a contracting authority, any declaration by the services provider attesting the details of the services provided;
 

•        the technicians or technical bodies who would be involved in the provision of the services under the contract, particularly those responsible for quality control, whether or not they are independent of the services provider;
 

•        the services provider's average annual manpower and the number of managerial staff over the previous 2 years;
 

•        the tools, plant and technical equipment available to the services provider for providing the services under the contract;
 

•        the services provider's measures for ensuring quality and the study and research facilities used in relation to the services to be provided under the contract;
 

•        where the services to be provided under the contract are complex or are required for a special purpose, any check, carried out by the contracting authority or on its behalf by a competent official body of the Member State in which the services provider is established, on the technical capacity of the services provider in relation to the services to be provided under the contract and, if relevant, on the services provider's study and research facilities and quality control measures;
 

•        any certificate that the services to be provided under the contract conform to BS 5750 (BS EN ISO 9 000) or any certificate of an independent body established in any Member State conforming to the EN 45 000 European standards series, or where the services provider has no access to such a certificate, or cannot obtain such a certificate within the relevant time limits, any other evidence of conformity to equivalent quality assurance standards; and,
 

•        any proportion of the contract which the services provider intends to sub-contract to another person.

The contracting authority shall specify in the contract notice or in the invitation to tender or will negotiate what information, for the assessment purposes, it requires to be provided and it may request that a services provider supply such information as it considers it needed to make the assessment or selection.

6.I.6 Confidentiality of Information - EU Directive Article 32(4) and UK SI Regulation 30

A contracting authority shall comply with Confidentiality of Information requirements provided to it by a supplier as the supplier may reasonably request.

6.I.7 Supplementary Information (EC Directive Article 34 and UK SI Regulation 17)

The contracting authority may require a services provider to supply supplementary information in accordance with Regulations 14, 15 and 16 (Articles 29 to 32) or to clarify information, provided that the information so required relates to matters specified in Regulations 14, 15, and 16 (UK SI Interpretation).